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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> THE BRITISH BROADCASTING CORPORATION AGAINST AGAINST THE RIGHT HONOURABLE LADY SMITH CHAIR OF THE CHILD ABUSE INQUIRY [2021] ScotCS CSOH_35 (01 April 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_35.html
Cite as: [2021] CSOH 35, [2021] ScotCS CSOH_35, 2021 SLT 499, 2021 GWD 12-158

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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 35
P981/19
OPINION OF LORD BOYD OF DUNCANSBY
In Petition of
THE BRITISH BROADCASTING CORPORATION
Petitioner
against
THE RIGHT HONOURABLE LADY SMITH
Chair of the Scottish Child Abuse Inquiry
Respondent
Petitioner: McBrearty QC, E Campbell; Burness Paull LLP
Respondent: Dean of Faculty, Pirie; Solicitor to the Scottish Child Abuse Inquiry
1 April 2021
Summary
[1]
The petitioner is a public broadcaster. The respondent is a Senator of the College of
Justice and Chair of the Scottish Child Abuse Inquiry ("the Inquiry"). She was appointed in
August 2016 following the resignation of the previous Chair, Susan O'Brien QC.
[2]
It is difficult to understate the importance of the Inquiry to the survivors of child
abuse and to the wider community. The respondent has had the difficult task of rebuilding
trust in the Inquiry following the departure of the previous chair, ensuring its independence
and integrity.
2
[3]
In July 2019 Mr John Halley, Advocate, a former counsel to the Inquiry, raised
proceedings in the Employment Tribunal against the respondent arising out of his
engagement with the Inquiry. The claim was based on the Equality Act 2010 and alleged
disability discrimination, harassment and victimisation by the respondent. The respondent
defended the claim. The claim was ultimately abandoned.
[4]
The respondent issued two restriction orders under section 19 of the Inquiries
Act 2005 ("the Act") dated 25 July 2019 and 9 September 2019 (the "original restriction
orders"). The effect of these orders was to prevent the publication or disclosure of the
documents forming the claim (known as ET1 and a paper apart) and response (ET3 and a
paper apart) as well as the existence of the proceedings before the Employment Tribunal. In
the course of correspondence the petitioner sought to have these orders varied to enable
them to publish the existence of the claim against the respondent and some details of the
proceedings. There is no dispute between the parties that contained within the documents
was material which was confidential and sensitive. The petitioner has not sought
permission, or the right, to publish any of the confidential or sensitive material.
[5]
The respondent sought an order from the Employment Judge under rule 50 of the
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 (as
amended) ("the Employment Tribunals Rules") that a hearing to deal with substantive
preliminary issues be held wholly in private. That motion was refused on the basis that the
hearing would be dealing solely with matters of law and it would not be necessary to refer
to the claim documents or hear evidence. Thereafter on 23 October 2019, and before the
hearing due to be held on 28 and 29 October, the respondent issued a press release in which
she revealed the existence of the claim against her. Separately advice was given to the
petitioner by the Deputy Solicitor to the Inquiry as to the effect of the restriction orders on
3
the petitioner's ability to report the proceedings in the Employment Tribunal. The terms of
that press release and advice given to the petitioner, together with the continued existence of
the original restriction orders, remained a matter of dispute between the parties. Subject to
those restrictions the media was able, for the first time, to publish the fact a claim had been
raised against the respondent in the Employment Tribunal.
[6]
A first order was granted in these proceedings on 29 October 2019. Mr Halley
withdrew his claim against the respondent on or about 11 December 2019.
[7]
On 2 March 2020 the respondent revoked the original restriction orders and granted
a new restriction order ("the replacement restriction order"). The replacement restriction
order is less restrictive than the original restriction orders. It continues to prohibit the
publication of the papers apart to ET1 and ET3, with the exception of paragraphs 1 to 11 of
the ET3 paper apart. These include sensitive and confidential details of the claim and
response. Both parties agree that the information contained within these documents
requires to be protected.
[8]
The petitioner contends that the respondent had no power to make any of the
restriction orders, and in any event no power to make the original restriction orders insofar
as they prohibited the disclosure or publication of the ET1, the ET3 and paragraphs 1 ­ 11 of
the ET3 paper apart. It also contends that the original restriction orders were in breach of
article 10 of the European Convention on Human Rights ("ECHR") insofar as they
prohibited disclosure or publication of those parts of the documents which were not
confidential or sensitive. It further submits that the decisions taken on 23 October 2019 and
15 November 2019 to refuse to vary the original restriction orders were irrational. Finally
the petitioner contends that all of the restriction orders are tainted by apparent bias. It seeks
the reduction of the replacement restriction order.
4
[9]
The respondent submits that the Court should refuse to consider the original
restriction orders as they are now academic. In any event they were lawfully granted and in
accordance with article 10 ECHR. There was no apparent bias. The respondent submits that
the Court should refuse to consider the replacement restriction order as the petitioner does
not have permission under section 27B of the Court of Session Act 1988 ("the 1988 Act") to
bring that order under review. In any event the petitioner has failed to exhaust its remedies
as it could have asked either for the respondent's consent to publish material or sought a
variation of the order.
[10]
For the reasons set out below I accept that granting the declarators sought in respect
of the original restriction orders, or the failure to vary them, would serve no useful purpose.
They are now academic. The petitioner submitted, however, that the manner in which the
respondent dealt with the original restriction orders, in breach of the principle of open
justice, raised important and troubling issues about the freedom of the press to report court
proceedings. It also informed the assessment as to whether, in granting the replacement
restriction order, the respondent had acted with apparent bias. For these reasons I deal in
some detail with the principle of open justice as it ought to have applied to the proceedings
before the Employment Tribunal. Because of my decision not to grant declarators in respect
of the original restriction orders or their variation I have not further considered the
arguments and nor have I repeated the parties' submissions as they apply to the original
restriction orders.
[11]
I accept that the petitioner requires permission under section 27B of the 1988 Act to
bring the replacement restriction order under review and I grant permission to do so. I
reject the submission that I should not consider the judicial review of the replacement
restriction order because of a failure by the petitioner to exhaust its remedies. I hold that the
5
respondent did have the power under section 19 of the Act to grant the replacement
restriction order. I am satisfied that the replacement restriction order is not tainted by
apparent bias.
Factual background
[12]
The Scottish Child Abuse Inquiry was established by the Scottish Government under
the Inquiries Act 2005 with the following terms of reference:
1.
To investigate the nature and extent of abuse of children whilst in care in
Scotland, during the relevant time frame.
2.
To consider the extent to which institutions and bodies with legal
responsibility for the care of children failed in their duty to protect children in care in
Scotland (or children whose care was arranged in Scotland) from abuse, regardless of
where that abuse occurred, and in particular to identify any systemic failures in
fulfilling that duty.
3.
To create a national public record and commentary on abuse of children in
care in Scotland during the relevant time frame.
4.
To examine how abuse affected and still affects these victims in the long term,
and how in turn it affects their families.
5.
The Inquiry is to cover that period which is within living memory of any
person who suffered such abuse, up until such date as the Chair may determine, and
in any event not beyond 17 December 2014.
6.
To consider the extent to which failures by state or non-state institutions
(including the courts) to protect children in care in Scotland from abuse have been
6
addressed by changes to practice, policy or legislation, up until such date as the
Chair may determine.
7.
To consider whether further changes in practice, policy or legislation are
necessary in order to protect children in care in Scotland from such abuse in future.
8.
To report to the Scottish Ministers on the above matters, and to make
recommendations, as soon as reasonably practicable.
[13]
The Inquiry has its own legal staff including counsel to the Inquiry comprising both
senior and junior counsel. One of the junior counsel so engaged was Mr John Halley,
Advocate.
[14]
His appointment was terminated in about April 2019. In about July 2019 he raised
proceedings in the Employment Tribunal by completing an Employment Tribunal claim
form, known as an ET1, with a paper apart detailing the claim. He alleged disability
discrimination, harassment and victimisation by the respondent, in contravention of the
Equality Act 2010. He sought substantial damages in excess of £2m. The ET1 and paper
apart were served on the respondent on or around 25 July 2019, along with notice of a
preliminary hearing.
[15]
On the same date, 25 July 2019, the respondent issued a restriction order under
section 19(1)(b) of the Act in the following terms:
"The Rt. Hon. Lady Smith, Chair of the Scottish Child Abuse Inquiry (the `Inquiry'),
has power under section 19(1)(b) of the Inquiries Act 2005 to make a restriction order
to restrict disclosure or publication of any evidence or documents given, produced or
provided to the Inquiry.
Employment Tribunals (Scotland) has given/provided to the Chair of the Inquiry a
notice of a claim by John Halley against the Rt. Hon. Lady Smith as Chair of the
Inquiry (comprising an ET1 claim form and paper apart) and, inter alia, a notice of a
preliminary hearing dated 24 July 2019 (case number 4107805/2019) (hereinafter
collectively referred to as the `Claim'). The Claim refers to many documents. The
Chair has considered the terms of the Claim and has had regard to the sensitive and
7
confidential nature of its contents. In particular, the Claim makes detailed reference
to the confidential work and workings of the Inquiry. In addition, it makes reference
to an applicant to the Inquiry. Furthermore, having regard, in particular, to:
the likelihood of impairing the effectiveness of the work of the
Inquiry;
the risk of harm or damage being occasioned to the ongoing work of
the Inquiry; and
the risk of harm or damage being occasioned to the applicant referred
to (or to other witnesses engaging with/who have engaged with the
Inquiry)
should the Claim be disclosed or published, the Chair has concluded that it is
conducive to the Inquiry fulfilling its Terms of Reference and that it is necessary in
the public interest to issue a restriction order and makes this order.
The Claim, or any part or parts of it, or any of the documents referred to therein (or
any part or parts thereof) must not be disclosed or published without the prior
consent of the Chair.
This order is effective from 25 July 2019."
[16]
On or around 9 September 2019 the respondent issued a response to the claim by
way of an ET3 form and a paper apart. On the same date the respondent issued a further
restriction order covering disclosure or publication of the response. The order was in much
the same terms but the justification and reasons for making the order made reference to
information given to the Inquiry by Police Scotland. The critical part is as follows:
"The Chair has considered the terms of the Response and has had regard to the
sensitive and confidential nature of its contents. In particular, the Response makes
detailed reference to the confidential work and workings of the Inquiry and
information which has been given/provided to the Inquiry (including by virtue of the
Claim). In addition, it makes reference to an applicant to the Inquiry as well as
information which has been given/provided to the Inquiry by Police Scotland in
confidence. Furthermore, having regard, in particular, to:
the likelihood of impairing the effectiveness of the work of the
Inquiry;
the risk of harm or damage being occasioned to the ongoing work of
the Inquiry; and
8
the risk of harm or damage being occasioned to the applicant referred
to (or to other witnesses engaging with/who have engaged with the
Inquiry) or to the work of Police Scotland and the public interest
therein
should the Response be disclosed or published, the Chair has concluded that it is
conducive to the Inquiry fulfilling its Terms of Reference and that it is necessary in
the public interest to issue a restriction order and makes this order.
The Response, or any part or parts of it, or any of the documents referred to therein
(or any part or parts thereof) must not be disclosed or published without the prior
consent of the Chair."
[17]
On 27 September 2019, the Employment Tribunal held a preliminary hearing and
assigned a further hearing for 28 and 29 October 2019 to deal with substantive preliminary
issues. The respondent applied to the Employment Judge for an order under rule 50 of the
Employment Tribunals Rules that the hearing to deal with the substantive preliminary
issues be conducted wholly in private. The basis for the application was that the respondent
was of the view that, if her application was not granted, the restriction orders dated 25 July
2019 and 9 September 2019 would be breached. The Employment Judge invited submissions
from the petitioner who responded with a written submission. On 11 October 2019 the
Employment Judge refused the respondent's application apparently stating that it would
not be necessary to hear any evidence or refer to any documents in order to determine the
preliminary issues (I have not seen any record of that comment). The Employment Judge
observed that appropriate orders under rule 50, if any, in relation to the rest of the litigation
would be considered once the outcome of that preliminary hearing was known.
[18]
On 9 October 2019 agents acting for the petitioner wrote to the respondent referring
to the restriction orders. The letter stated that the agents understanding of the orders was
that they were not wide enough to prohibit disclosure or publication of the existence of the
9
proceedings against the respondent. The letter sought a variation under section 20(4) of the
Act to clarify the point. The letter continued:
"If, on the contrary, the Inquiry intends that the Restriction Orders do prohibit
disclosure or publication of the fact that the claimant has raised proceedings against
the respondent, then BBC Scotland in any event request that Restriction Orders are
varied to permit disclosure or publication of the existence of the proceedings."
[19]
On 10 October Jill Lavelle, the Deputy Solicitor to the Inquiry replied:
"I can confirm that it is the Chair's position that they (the restriction orders) prevent
publication or disclosure of the existence of the proceedings."
She further noted that Lady Smith would "give careful consideration to the application by
the BBC for the variation of her orders" and indicated that "she may convene a hearing to
hear submissions on the application".
[20]
On 17 October, apparently in response to an opportunity to provide further
submissions, the petitioner's agents emailed the Inquiry as follows:
"As you are aware the BBC seeks variation of the orders granted by Lady Smith on
25 July and 9 September, not only because of the decision of Judge Whitcombe (the
Employment Judge) to refuse a private hearing, but because it is the BBC's position
that the original orders of 25 July and 9 September were granted in error.
In this respect we would refer to section 5(5) of the Inquiries Act 2005 which
provides that functions conferred by the Act on an inquiry panel, or member of an
inquiry panel, are exercisable only within the terms of reference. While the BBC
accepts that the Chair of the Inquiry had the power to grant restriction orders to
immediately prohibit the disclosure or publication of genuinely sensitive and
confidential information which related to the Terms of Reference and which was
contained within the ET1 and ET3 (and the associated papers), we consider that
Lady Smith did not have the power to grant orders, the effect of which was to
prohibit disclosure or publication of the very existence of the tribunal proceedings or,
indeed, any information other than that which relates to the Terms of Reference. The
existence of the proceedings does not, in itself, relate to the matters falling within the
Terms of Reference.
In addition, even if the Chair of the Inquiry had power to grant the original orders to
cover the existence of the tribunal proceedings, the orders to that extent were not
warranted in terms of section 19(3) and (4) of the 2005 Act.
10
Furthermore the orders are not now warranted in so far as Judge Whitcombe has
ruled that the hearing will not be in private. All relevant information will be in the
public domain as a result of a decision made by an Employment Judge in relation to
proceedings before him. That being so, there is no warrant for retaining the orders in
place in so far as it relates to matters that will in any event be in in the public
domain."
[21]
On 23 October 2019, apparently in response to the email, the respondent issued a
press release. It confirmed that John Halley had raised discrimination proceedings against
the respondent in the Employment Tribunal. It continued:
"[The respondent] denies that he (Mr Halley) was discriminated against; the actings
about which he complains were carried out by her in the performance of her duties
as Chair of the Inquiry in relation to that counsel having a conflict of interest arising
from his previous employment as a residential care worker."
[22]
The press release stated that it had been issued in circumstances where the
Employment Judge had ruled that a hearing on 28 and 29 October, which was solely for the
purposes of hearing submissions on issues of law, was to be open to the public. A note to
the editors advised that the Chair had issued restriction orders under section 19 of the Act.
Apart from the information provided in the press release,
"given these restriction orders, neither the claim or response nor part or parts of
them nor any information contained in them may be disclosed or published without
the prior consent of the Chair of the Inquiry."
The same applied to any document referred to in the claim or response. The press were
informed that the Employment Judge had made clear that the hearing was solely concerned
with issues of law that did not require the hearing of evidence or any reference in the course
of the hearing to what was said by way of particulars in either the claim or response.
[23]
Along with the press release the respondent issued her decision on the application
for variation by the petitioner. She narrated the background to the claim and the response.
She noted that both the claim and the response made detailed reference to the confidential
11
work and workings of the Inquiry. She said that she had concluded that it was conducive to
the Inquiry fulfilling its terms of reference to issue the restriction orders. She continued:
"In reaching that conclusion, I had regard, in particular, to (i) the likelihood, should
the Claim or the Response be disclosed or published, of impairment to the
effectiveness of the work of the Inquiry (ii) the risk, should the Claim or the
Response be disclosed or published, of harm or damage being occasioned to the
ongoing work of the Inquiry and (iii) the risk, should the Claim be disclosed or
published, of harm or damage being occasioned to the applicant (a person who tells
the Inquiry that he/she was abused in circumstances which fall within its Terms of
Reference) referred to and to other witnesses engaging with or who have engaged
with the Inquiry and (iv) the risk, should the Response be disclosed or published, of
harm or damage being occasioned to the applicant referred to or to other witnesses
engaging with or who have engaged with the Inquiry or to the work of Police
Scotland and the public interest therein.'
The orders, when made, were intended to prohibit disclosure or publication of the
fact that the claimant had brought proceedings against the Chair of the Inquiry and
of anything contained in the Claim and the Response or any of the documents
referred to therein."
[24]
The respondent made reference to the application for variation and confirmed, "I did
intend to prohibit disclosure or publication of that fact (that proceedings had been brought
against her) without my prior consent." She referred to the press release issued by her in
which she had confirmed the existence of the proceedings and repeated the salient parts of
that release. Her decision on the petitioner's application for variation of the restriction
orders was as follows:
"In view of that statement, given that the BBC's application was to seek a variation of
the Restriction Orders to allow it to report the fact that the claimant has raised
proceedings against me, I am refusing the application as unnecessary. I do not
consider it necessary to make any variation to my Restriction Orders which remain in
place."
[25]
On 24 October 2019 the petitioner's agents wrote again to the respondent, noting her
decision of the previous day. They did not agree with the decision and requested
reconsideration of the request for a variation. They complained that the respondent's
decision had not addressed the question of vires. They repeated their view that the
12
respondent did not have the power to grant orders, the effect of which was to prohibit
disclosure or publication of the existence of the tribunal proceedings or any information
other than that which related to the terms of reference. The letter stated that the
respondent's decision appeared to have wrongly proceeded on a narrow interpretation of
the petitioner's position. At no time had the petitioner restricted the request for a variation
to allowing the petitioner to report the fact that proceedings had been raised against her:
"Given the press release, the existence of the Employment Tribunal can no longer fall
into the category of matters you seek to restrain. However your reliance on the press
release as a justification for refusing variation of the Restriction Orders leaves our
client unable to properly report aspects of the Employment Tribunal claim that ought
legitimately to be disclosed such as the nature of the allegations. Such reporting
would fall foul of the Restriction Orders despite not falling within the Terms of
Reference."
[26]
The agents then referred to the preliminary hearing on 28/29 October 2019. The
petitioner would ordinarily assume that anything said in the course of the hearing could be
reported. It remained unclear however whether such reporting would fall foul of the
restriction orders. They asked for clarification on the point. They closed by asking for a
variation of the restriction orders to allow proper reporting of the Employment Tribunal
proceedings.
[27]
Two points should be made on this letter. First the reference to vires leaves it unclear
whether the agents considered the restriction orders were entirely outwith the respondent's
powers as Chair of Inquiry. If they were then it would follow that the respondent would
have no power to vary the orders, as they were requesting. The better view, though unclear
from the letter, is that what was sought was removal of those parts of the orders which took
the orders ultra vires. It appears that what was being sought were orders which would, in
their view, restrict its effect more closely to the terms of reference, though what was meant
by that is again unclear from the letter. Secondly it was untrue for the respondent to suggest
13
that the petitioner had never restricted the application for a variation to the existence of the
proceedings against the respondent. The letter of 9 October 2019 was such an application,
though it is true to say that the request for variation was widened in the email of 17 October
to include information which did not fall within the Inquiry's terms of reference.
[28]
Jill Lavelle, Deputy Solicitor to the Inquiry, responded on 25 October 2019 advising
that the request for a variation was under consideration. In relation to the reporting of
proceedings before the Employment Tribunal was concerned she said that the Employment
Judge had stated that he could see no reason for counsel for the claimant and the respondent
at the hearing to refer to any of the sensitive and confidential material or, the confidential
work and workings of the Inquiry, or information given by Police Scotland in confidence. If
matters proceeded in that way, it seemed likely that no question of breaching the restriction
orders by reporting on the proceedings would arise. She continued:
"However, the Chair cannot proceed on the assumption that there is no possibility of
anything being said, whether inadvertently or not, that would fall within the scope
of the Restriction Orders. In such circumstances, giving confirmation that reporting
"anything said" in public in the course of next week's hearing will not give rise to a
breach of the Restriction Orders is not something she can reasonably be asked to give
at this stage. The Inquiry will be represented at next week's hearing and, if there is
any dubiety as to whether reporting may breach the Restriction Orders, this can be
discussed with the Inquiry's representatives and media consultants at the hearing
venue."
[29]
It is clear from this that the respondent considered that the restriction orders could
prevent reporting of proceedings in public before the Employment Tribunal. It was not
explained to me on what authority the chair of an inquiry established under the Act could
purport to restrict the reporting of proceedings conducted in public before a Tribunal.
[30]
In the course of the correspondence the petitioner's agents had made it clear to the
respondent that if matters were not resolved to their satisfaction the petitioner would bring
14
a petition for judicial review. This petition was subsequently lodged and first orders were
granted on 29 October 2019.
[31]
On 15 November 2019 Jill Lavelle again wrote to the petitioner's agents. She noted
that the petitioner had been given a copy of form ET1 by Mr Halley, or on his behalf and
with his authority. This was in breach of a personal confidentiality undertaking. She said
that the Inquiry's position was that the ET1 having been disclosed in breach of an obligation
owed by Mr Halley to the respondent that the information in it should not be further
disseminated by the BBC. The letter noted that the petitioner had not sought to report on
matters which were the subject matter of the restriction orders but instead sought
clarification of whether the effect of the orders was to prevent reporting of the very existence
of the proceedings. The orders however had within them a mechanism whereby, whilst
leaving the orders unvaried, the respondent might consent to disclosure or publication of
matters protected by them.
The letter noted the position then taken by the petitioner in the petition for
judicial review (which has since been amended by adjustment) that the petitioner
would accept that "it would be appropriate for an order to be issued under
section 19 of the Act covering (i) the confidential work and workings of the
Inquiry; (ii) reference to any applicant to the Inquiry; and (iii) information which
has been given/produced to the Inquiry by Police Scotland in confidence".
The letter noted however that
"given that the entirety of the claim concerned the confidential work and workings
of the Inquiry (including actings/events in relation to the claimant having a conflict
of interest), the respondent is having some difficulty in understanding how a
restriction order in that form would, in substance, be any different from the terms of
her existing restriction orders, or indeed how such an order could satisfactorily be
framed".
The letter stated that the respondent's primary concern will "always be to protect all those
who participate in the inquiry and in particular vulnerable survivors of abuse". The letter
emphasised that if there was a particular matter or matters disclosed in the ET1 which it was
15
thought appropriate and in the public interest to report the petitioner should indicate what
these were. The respondent would then be in a position to consider whether she was able to
consent to publication.
[32]
The petitioner's agents replied on 20 November 2019. They repeated that they
considered that the restriction orders were ultra vires and accordingly it would be improper
for the petitioner to seek consent from the respondent when they were of the view that the
granting of the restriction orders was unlawful. "In any event," the letter continued,
"to suggest that our client ought to seek consent from Lady Smith would be to
suggest that the BBC cede editorial control over the reporting of a civil claim held in
open court. We do not accept that Lady Smith has any basis to request such control."
The letter concluded noting that it appeared implicit from the terms of the Deputy Solicitor's
letter that the BBC's request for a variation as detailed in their letter of 24 October had been
refused though it remained open to the respondent to reconsider that decision.
[33]
Meanwhile, the preliminary hearing in the Employment Tribunal was adjourned on
the claimant's application. Submissions had been made from counsel on the respondent's
behalf. After counsel for the claimant had commenced his submissions the Employment
Judge had intervened to ask whether counsel was advancing a claim not advanced in his
pleadings. Counsel had then asked for an adjournment. On about 11 December 2019 the
claimant withdrew proceedings against the respondent.
[34]
On 2 March 2020 the respondent revoked the restriction orders dated 25 July 2019
and 9 September 2019 and replaced it with a new restriction order. She noted that the claim
by Mr Halley had been withdrawn and dismissed by the Employment Tribunal and stated,
"The Chair has accordingly reviewed the terms of her orders of 25 July and 9 September."
The pertinent parts of the order were as follows:
16
"This order relates to (1) the paper apart appended to the notice of a claim (ET1) by
John Halley against the Rt. Hon. Lady Smith as Chair of the Inquiry (case
number 4107805/2019) (hereinafter referred to as the "ET1 paper apart"), and (2) the
response by the Chair, comprising the paper apart appended to the response (ET3),
with the exception of paragraphs 1 to 11 of the paper apart, to which this order does
not apply (hereinafter referred to as "the ET3 paper apart"').
The ET1 paper apart and ET3 paper apart refer to the confidential work and
workings of the Inquiry, and in particular to:
evidence relating to particular establishments, to an applicant to the
Inquiry and to the Inquiry's ongoing, confidential engagement with a
core participant, all provided to the Chair in the context of her
inquiries into matters within the Inquiry's Terms of Reference; and
documents provided to the Chair (or to those acting on her behalf) in
the context of her exercise of her powers relating to the appointment,
and the continuing appointment, of counsel to the Inquiry under the
Inquiries (Scotland) Rules 2007.
These matters are referred to directly and by implication throughout the ET1 paper
apart and the ET3 paper apart.
The Chair has had regard to the sensitive and confidential nature of the ET1 paper
apart and the ET3 paper apart, which contain evidence and documents given,
produced or provided to the Inquiry. She considers that disclosure and/or
publication of the ET1 paper apart and/or ET3 paper apart would be likely to:
impair the efficiency and effectiveness of the work of the Inquiry;
risk harm or damage being occasioned to the ongoing work of the
Inquiry; and
risk harm or damage being occasioned to the applicant referred to, to
the core participant referred to and/or to others (including witnesses)
who are engaging with/have engaged with the Inquiry.
The Chair has accordingly concluded that it is conducive to the Inquiry fulfilling its
Terms of Reference and that it is necessary in the public interest to issue a restriction
order and makes the following order.
The ET1 paper apart and/or the ET3 paper apart, or any part or parts of it, or any of
the documents referred to therein (or any part or parts thereof) must not be disclosed
or published without the prior consent of the Chair."
17
[35]
The replacement restriction order was imposed 12 weeks after the claim in the
Employment Tribunal had been abandoned and a short time before the substantive hearing
in these proceedings. (The substantive hearing was fixed 29 April 2020 with a procedural
hearing on 27 March 2020. Both were adjourned as a result of the Covid-19 pandemic).
Orders sought
[36]
The petitioner seeks the following orders:
i.
declarator that the Restriction Orders were ultra vires and of no effect.
ii.
failing declarator first sought, declarator that the Original Restriction Orders
were ultra vires and of no effect insofar as they prohibited the disclosure or
publication of the ET1, the ET3 and paragraphs 1 ­ 11 of the ET3 paper apart.
iii.
declarator that the Original Restriction Orders, were in breach of Article 10 of
the European Convention of Human Rights insofar as they prohibit the
disclosure or publication of the ET1, the ET3 and paragraphs 1 ­ 11 of the
ET3 paper apart.
iv.
declarator that the decision dated 23 October 2019 to refuse to vary the
Original Restriction Orders, in order to remove the prohibition of disclosure
or publication of the ET1, ET3 and paragraphs 1 ­ 11 of the ET3 paper apart
was irrational.
v.
declarator that the decision dated 15 November 2019 to refuse to vary the
Original Restriction Orders, in order to remove the prohibition of disclosure
or publication of the ET1, ET3 and paragraphs 1 ­ 11 of the ET3 paper apart
was irrational.
vi.
declarator that the Restriction Orders are tainted by apparent bias and for
reduction of the Replacement Restriction Order.
Legal provisions
Inquiries Act 2005
[37]
The salient sections of the Inquiries Act are as follows:
18
"Section 5(5):
Functions conferred by this Act on an inquiry panel, or a member of an inquiry
panel, are exercisable only within the inquiry's terms of reference.
Section 18: Public access to inquiry proceedings and information
1.
Subject to any restrictions imposed by a notice or order under section 19, the
chairman must take such steps as he considers reasonable to secure that members of
the public (including reporters) are able­
(a)
to attend the inquiry or to see and hear a simultaneous transmission of
proceedings at the inquiry;
(b)
to obtain or to view a record of evidence and documents given,
produced or provided to the inquiry or inquiry panel.
Section 19: Restrictions on public access etc.
(1)
Restrictions may, in accordance with this section, be imposed on­
(a)
attendance at an inquiry, or at any particular part of an inquiry;
(b)
disclosure or publication of any evidence or documents given,
produced or provided to an inquiry.
(2)
Restrictions may be imposed in either or both of the following ways­
(a)
by being specified in a notice (a `restriction notice') given by the
Minister to the chairman at any time before the end of the inquiry;
(b)
by being specified in an order (a `restriction order') made by the
chairman during the course of the inquiry.
(3)
A restriction notice or restriction order must specify only such restrictions­
(a)
as are required by any statutory provision, [retained enforceable EU
obligation]1 or rule of law, or
(b)
as the Minister or chairman considers to be conducive to the inquiry
fulfilling its terms of reference or to be necessary in the public interest, having
regard in particular to the matters mentioned in subsection (4).
(4)
Those matters are­
(a)
the extent to which any restriction on attendance, disclosure or
publication might inhibit the allaying of public concern;
19
(b)
any risk of harm or damage that could be avoided or reduced by any
such restriction;
(c)
any conditions as to confidentiality subject to which a person acquired
information that he is to give, or has given, to the inquiry;
(d)
the extent to which not imposing any particular restriction would be
likely­
(i)
to cause delay or to impair the efficiency or effectiveness of the
inquiry, or
(ii)
otherwise to result in additional cost (whether to public funds
or to witnesses or others).
(5)
In subsection (4)(b) "harm or damage" includes in particular­
(a)
death or injury;
(b)
damage to national security or international relations;
(c)
damage to the economic interests of the United Kingdom or of any
part of the United Kingdom;
(d)
damage caused by disclosure of commercially sensitive information."
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237
[38]
The petitioner referred to rule 50 of the Employment Tribunals Rules. It is in the
following terms:
"50.
Privacy and restrictions on disclosure
(1)
A Tribunal may at any stage of the proceedings, on its own initiative or on
application, make an order with a view to preventing or restricting the public
disclosure of any aspect of those proceedings so far as it considers necessary in the
interests of justice or in order to protect the Convention rights of any person or in the
circumstances identified in section 10A of the Employment Tribunals Act.
(2)
In considering whether to make an order under this rule, the Tribunal shall
give full weight to the principle of open justice and to the Convention right to
freedom of expression.
(3)
Such orders may include--
20
(a)
an order that a hearing that would otherwise be in public be
conducted, in whole or in part, in private;
(b)
an order that the identities of specified parties, witnesses or other
persons referred to in the proceedings should not be disclosed to the public,
by the use of anonymisation or otherwise, whether in the course of any
hearing or in its listing or in any documents entered on the Register or
otherwise forming part of the public record;
(c)
an order for measures preventing witnesses at a public hearing being
identifiable by members of the public;
(d)
a restricted reporting order within the terms of section 11 or 12 of the
Employment Tribunals Act."
Submissions for petitioner
Introduction
[39]
Mr McBrearty opened his submissions by emphasising that there was no question of
actual bias. The petitioner was not seeking to question the respondent's subjective motive in
imposing the restriction orders. The petitioner also recognised the importance of the
Scottish Child Abuse Inquiry. It recognised that the respondent required to build and
maintain trust in the work of the Tribunal, particularly following the resignation of the
former Chair, Susan O'Brien QC. The petitioner was not seeking to attack her personal
integrity or honour.
[40]
Nevertheless the respondent had erred. The effect of her orders was to interfere with
the principle of open justice. If it was necessary to impose restrictions on the publication of
material contained in the claim and response, appropriate orders should have been sought
from the Employment Judge who was seized of the proceedings. The respondent was a
litigant before the Tribunal. One could not reconcile with principle the proposition that a
party to proceedings could control the dissemination of information before the court in
21
which she was a party. She had a personal interest. That conflict of interest meant that the
orders should not have been granted. They were tainted by apparent bias and were ultra
vires.
Open justice
[41]
It was a general principle of constitutional law that justice is administered by the
courts in public. Proceedings in open court may be reported in the press and by other
methods of broadcasting in the media. The principle of open justice was inextricably linked
to the freedom of the media to report on court proceedings. The courts had an inherent
jurisdiction to determine how the principle should be applied. Whether a departure from
the principle of open justice was justified would depend on the facts of the case. The Court
had to carry out a balancing exercise. The principle of open justice is balanced by the risk of
harm to the maintenance of an effective judicial process and the legitimate interests of
others. The approach under article 10 ECHR is consistent with the common law: A v
Secretary of State for the Home Department 2014 SC (UKSC) 151, per Lord Reed JSC at
paragraphs 23 ­ 27, 41, 54; MH v The Mental Health Tribunal for Scotland 2019 SC 432, per
Lord Carloway LP at paragraphs 16, 18 and 19.
[42]
In Dring v Cape Intermediate Holdings Ltd [2019] 3 WLR 429, the Supreme Court had
held that the constitutional principle of open justice applied to all courts and tribunals
exercising the judicial power of the state. The public should be allowed access to documents
which were before the court. In deciding whether to grant access to documents the court
has to balance the principle of open justice with the risk of harm to the maintenance of an
effective judicial process or to the legitimate interests of others; per Lady Hale PSC
paragraphs 41 ­ 47.
22
[43]
Applying these principles to this case what the respondent ought to have done was
to seek an order under rule 50 of the Employment Tribunals Rules covering the sensitive
material. Rule 50(3) was a non-exhaustive list of matters that might be covered by such an
order and the ambit of the rule was wide enough to cover the claim and response and other
documents and information before the Tribunal. Alternatively the Employment Tribunal
has power to grant orders under section 4(2) of the Contempt of Court Act 1981; section 19
of that Act. The respondent could have applied for an order similar to the one which I had
granted in this case at her behest. The fact that the respondent had moved for such an order
from this Court demonstrated an acceptance that it is for the Court before whom the
proceedings are live to regulate the dissemination of documents and information before it.
[44]
So far as the particular documents are concerned there was nothing in ET1 which
was harmful to the workings of the Inquiry. The paper apart was an extended version of the
claim and did include sensitive details. Although the petitioner had a copy of the document
it had no intention of publishing it or any information from it. Form ET3 did not contain
any sensitive information and nor did paragraphs 1 to 11 of the paper apart. It was accepted
that paragraphs 12 onwards did contain sensitive information which should not be
published.
[45]
The original restriction orders were of the most restrictive type that could ever be
envisaged. They sought to prohibit the disclosure of the existence of the proceedings. The
respondent had sought to persuade the Employment Judge to hold a private hearing on the
basis that to hold it in public would undermine the restriction orders. This was an attempt
to derogate from his discretion as to whether the proceedings should be held in public. The
Employment Judge had refused the application. Yet the respondent had refused to vary the
restriction orders preferring to rely on a press release which only gave a partial narrative of
23
the facts of the claim. In particular although the press release said that John Halley had
raised discrimination proceedings against the respondent in the Employment Tribunal there
was no mention of victimisation or harassment. The release also gave her side of the story
denying that she discriminated against Mr Halley and noting his conflict of interest arising
from his previous employment as a residential care worker. In other words all that could be
reported at that point was what the respondent, a party to the proceedings, chose to put in
the public domain. This was impossible to reconcile with principle.
[46]
When enquiries had been made about reporting of the hearing in public on
28/29 October 2019 the petitioner had been advised that there was no difficulty if the
proceedings were limited to the issues of law. However, the respondent could not assume
that there was no possibility of anything being said which might fall within the scope of the
restriction orders. If there was dubiety about it then the petitioner could discuss the matter
with the Inquiry's legal representatives and media consultants. In other words what could
be reported as being said at a public judicial hearing was to be policed by one of the parties
to the proceedings. Again this was contrary to principle. If, contrary to expectation,
something had been said at the hearing then again the proper course for the respondent
would have been to make an application under rule 50.
Whether the petition in respect of the original restriction orders was academic
[47]
The petition, so far as the original orders was concerned, was not academic. The
question of vires applied to all three restriction orders. The original restriction orders were
the operative ones which prevented the petitioner from reporting the fact of the claim
against the respondent when it should have been reported. News is a perishable commodity
and the reason why the news perished in this case was as a result of the restriction orders.
24
There were wider implications and important repercussions. It was important that there
was a ruling on the vires of the orders. This was a point of general public importance
particularly given the fact that the respondent had herself prevented disclosure under the
original orders and then, three months after the claim was abandoned and shortly before the
substantive hearing, made a new order. There was a significant derogation from the
principle of open justice and there was a strong public interest in adjudicating on that issue.
Vires
[48]
The respondent had no power to make any of the restriction orders as it was not
within the powers conferred on her by the Act. Section 5(5) provided that the functions
conferred on an inquiry panel were only exercisable within the terms of reference; Beer,
Public Inquiries, paragraphs 2.106-2.108; Re Royal Commission on Licensing [1945] NZLR 665.
It follows that just as an inquiry can only investigate and report on matters falling within its
terms of reference, any ancillary functions can only be exercised in relation to the terms of
reference, in accordance with section 5(5). Sections 18 and 19 require to be read together.
Section 18 imposes a duty on the chairman of an inquiry, subject to section 19, to take such
steps as he or she considers necessary to allow public access to the inquiry, and to allow
public access to evidence and documents given, produced or provided to the inquiry. Any
documents to which public access is to be allowed must be those "given, produced or
provided to the inquiry" as a result of the inquiry exercising functions within its terms of
reference. Thus, section 18 applies to documents which are ingathered by the inquiry in the
course of investigating the subject matter covered by the terms of reference and to
documents referred at the oral hearings of the inquiry. Documents sent to the inquiry, such
25
as to the chairman in a private capacity, would not fall within the terms of reference and
accordingly would not be documents to which section 18 applied.
[49]
The words "given, produced or provided to an inquiry" in section 19 mirror the
words used at section 18 and should be given the same meaning. The result is that, reading
section 19 together with section 5(5), the power to grant a restriction order applies only to
documents which are "given, produced or provided to the inquiry" as a result of the inquiry
exercising a function within its terms of reference. The power to grant a restriction order can
therefore only be exercised in relation to documents which otherwise fall within section 18
and to which the chairman is obliged to provide public access.
[50]
Section 19(3) and (4) limit the power to grant a restriction order but it is a
prerequisite to the grant of any restriction order that it should be imposed only in
accordance with subsection (1). A chair would not be entitled to bypass the requirement of
subsection (1) and to rely only on subsection (3) in order to grant a restriction order.
[51]
Alternatively the terms of section 5(5) should be applied to the word "documents"
within section 19(1) rather than to the words "given, produced or provided". On that view a
restriction order could be imposed in respect of the disclosure or publication of any
document, however the inquiry comes to hold it, but only in so far as the document contains
information falling within the terms of reference of the inquiry. Thus, if a document, or part
of it, does not relate to the terms of reference of the inquiry, then there would be no
obligation to make it public under section 18, and no power to restrict its disclosure or
publication under section 19.
[52]
In dealing with the claim document and in making the response the respondent was
not exercising a function within the terms of reference. Likewise in completing the response
the respondent was not exercising a function within the terms of reference. There is nothing
26
in ET1 which could be considered as falling within the terms of reference of the inquiry, nor
anything that could be considered confidential. It is a form which in normal course could be
made available to the press by the Employment Tribunal in accordance with the principle of
open justice: Dring v Cape Intermediate Holdings Ltd. The paper apart contains more detailed
information including sections which relate details of, for example, how certain complaints
came to have been made to the Inquiry. Such information relates to the Inquiry but was not
provided to the respondent in relation to her terms of reference. A similar analysis applies
to the response. There is nothing in ET3 or paragraphs 1 to 11 of the paper apart which
would justify the use of a restriction order. The remainder of the paper apart contains
information which relates to the Inquiry but, again, it was not narrated on behalf of the
respondent in relation to her terms of reference. The replacement restriction order does not
prevent disclosure or publication of these details. There is no rational explanation why the
withdrawal of the claims, in the absence of any order from the Court, justifies a change in
position by the respondent. Either the existence and nature of the proceedings required to
be restricted or they did not. The necessity to restrict access cannot rationally be determined
by the outcome of the proceedings.
Apparent bias
[53]
The restriction orders are tainted by apparent bias. The respondent decided that the
ordinary principles of open justice should not apply to the proceedings before the
Employment Tribunal. In doing so she acted as judge in her own cause. It was not
necessary for her to make an order. She could have requested that the Minister make an
order under section 19(1)(a) of the Act. Alternatively she could have sought an order from
the Employment Tribunal. The correct approach to apparent bias is that the Court must first
27
ascertain all the circumstances which have a bearing on the suggestion that the judge was
apparently biased. It must then ask whether those circumstances would lead a fair-minded
and informed observer to conclude that there was a real possibility that the judge was
biased: Porter v Magill 2002 2 AC (HL) 357 at 102-103. In the circumstances of the current
action, it is submitted that the fair-minded and informed observer would conclude that there
was a real possibility that the respondent was influenced by bias. In particular, due to the
fact that the respondent: (i) had an interest in the matter; (ii) was judge in her own cause;
and (iii) could have sought reporting restrictions from others but chose not to. Courts have
consistently held there to exist at least apparent bias in circumstances which are less clear
cut than the current circumstances. One of the fundamental principles of the common law
of apparent bias is that one should not be a judge in one's own cause: Dimes v The
Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759; R v Bow Street Metropolitan
Stipendiary Magistrate & Ors ex parte Pinochet (No. 2) [2000] 1 AC (HL) 119 ("Pinochet"). In
some cases that can lead to automatic disqualification. On others the existence of apparent
bias is presumed: see R (on application of Darsho Kaur) v Institute of Legal Executives Appeal
Tribunal [2011] EWCA Civ 1168 at paragraph 45; Locabail (UK) Ltd v Bayfield Properties Ltd &
Ors [2000] QB 451; Davidson v Scottish Ministers [2004] UKHL 34. In the circumstances there
is a presumption of apparent bias.
Response to respondent's submissions
[54]
Permission to bring the replacement restriction order under review was not required.
The grounds of vires and apparent bias were the same as for the original restriction orders.
There was no failure to exhaust remedies. If the orders were ultra vires then it followed that
the respondent had no power to vary them.
28
Submissions for respondent
Introduction
[55]
The Dean of Faculty submitted that the correct target for the petition was the
replacement restriction order made on 2 March 2020. The Court should not grant the orders
sought in respect of that order because no permission had been granted under section 28B(1)
of the Court of Session Act 1988; there was a clear alternative remedy to which the
petitioner has not resorted, the declarators would serve no practical purpose and the
restriction order was not unlawful.
Judicial review of original restriction orders academic
[56]
Judicial review of the original restriction orders would serve no practical purpose.
Judicial review remedies are discretionary: Eba v Advocate General for Scotland
2012 SC (UKSC) 1 at [27]. In exercising its discretion, the court does not act in vain: King v East
Ayrshire Council 1998 SC 182 at p194 C - H. The Court should not entertain hypothetical or
academic questions. The declarator must be designed to achieve a practical result:
Wightman v Secretary of State for Exiting the European Union 2019 SC 111 at [21] to [25] and in
particular quoting the dictum of Thomson LJC in Macnaughton v Macnaughton Trs 1953
SC 387 at 382. In R (on the application of Dolan and others) v Secretary of State for Health and
Social Care and anr [2020] EWCA Civ 1605 the Court of Appeal in England and Wales held
that a petition for judicial review brought against regulations made by the respondent to
deal with the Covid-19 pandemic was clearly academic as the regulations in question had
been repealed. In that case the Court went on to determine the issue of vires because the
same issue may have to be addressed in the Magistrates' Court as a defence in criminal
29
proceedings and because the same enabling power was being used to make new regulations.
There was however a tangible and public benefit. No such benefit was apparent here.
Failure to resort to alternative remedy
[57]
The petition should be refused because the petitioner has failed to resort to an
alternative remedy. The petitioner is entitled to apply for the respondent's consent to
publish such parts of the ET1 as it contends ought to be publishable. It has failed to do so.
Failure to resort to a statutory mechanism for recall or revocation may be fatal to an
application to the supervisory jurisdiction: British Broadcasting Corporation, Petr
[2020] CSOH 35 at [37]. A common law remedy such as that is also fatal to an application to the
supervisory jurisdiction: Gray v Braid Logistics (UK) Ltd [2017] CSOH 44 at [28]-[29],
[37]-[42]. Section 20 of the Act provides a mechanism for recall or variation.
No practical purpose to any of the orders sought
[58]
The petitioner said in correspondence that it ought to have been able to publish all
the information set out in the ET1, ET3 and paragraphs 1 - 11 of the ET3 paper apart. The
replacement restriction order does not forbid the petitioner from publishing any of that
information.
Vires
[59]
Section 19(1) provides, "Restrictions may, in accordance with this section, be imposed
on ...(b) disclosure or publication of any evidence or documents given, produced or
provided to an inquiry". Read with subsection (2) it gives the respondent the power to make
the restriction orders for two reasons. First, the documents themselves were "given,
30
produced or provided to an inquiry". Second, the contents of the documents were "given,
produced or provided to an inquiry".
[60]
The petitioner submitted that section 19(1)(b) did not give the respondent the power
to make the restriction order because the documents were given for the purpose of the
proceedings in the Employment Tribunal rather than the purpose of fulfilling the Inquiry's
terms of reference. That interpretation of section 19(1)(b) was said to derive from reading it
with section 5(5), which provides that functions conferred by the Act "are exercisable only
within the inquiry's term of reference".
[61]
That interpretation was wrong. First, it is contrary to the ordinary meaning of the
words in section 19(1)(b). On a sensible, and in any event on a purposive reading of those
words, the documents themselves and their contents were "given, produced or provided to
an inquiry". Second, section 19(3) sets express limits on the section 19(1)(b) power to impose
restrictions. Had Parliament intended the power to be limited to documents provided for
the purpose of fulfilment of the terms of reference, it would have expressed that limit there.
No such limit is found. Rather, the limitation that is expressed (by section 19(3)(b)) is that
restrictions should only be such "as the ... Chairman considers to be conducive to the inquiry
fulfilling its terms of reference or to be necessary in the public interest, having regard in
particular to the matters mentioned in subsection (4)". Third, other provisions of the Act
point away from an intention that the power to restrict disclosure or publication of a
document depends on why an inquiry was given it; (a) Sections 1, 15(2) and 19(4)(a) show
that the aim of the Act is to allay public concerns. The purpose for which a document is
given (or produced or provided) to the inquiry has no bearing on the necessity of a
restriction on its disclosure or publication for the pursuit of that aim; (b) Section 17(1) shows
an intention to give the chair broad discretion in the conduct of an inquiry;
31
(c) section 19(3)(a) envisages a restriction order when required by any statutory provision or
rule of law. It is hard to see why the power to make an order in accordance with the
requirement should depend on the purpose for which the document was provided to the
inquiry; (d) section 37(3) shows that Parliament will express a "for the purposes of
proceedings before an inquiry" condition if it intends one; (e) the definition of "document"
in section 43(1) shows that, for the purposes of restraints on disclosure, Parliament
considered that the information is more important than the form in which the information is
recorded.
[62]
Fourth, the petitioner's interpretation of section 19(1)(b) would make the Act
ineffective. On the petitioner's interpretation, whether the chair of an inquiry has the power
to restrict disclosure of a document because that is conducive to the inquiry fulfilling its
terms of reference depends on the purpose for which the document was given rather than
on what the document says. That power would be particularly unsuitable for the Inquiry
because of the sensitivity of its investigations and the range of people involved including
victims of sexual crime, alleged sexual criminals, the police or care organisations. The
chair's power under section 18(1)(b) to disclose applies to the same documents - those
"given, produced or provided to the inquiry" - as her power under section 19(1)(b) to restrict
disclosure. If the purpose of giving a document prevents the chair from making a restriction
order, it also prevents her from disclosing the document, irrespective of the extent to which
disclosure would help to allay public concerns. The petitioner's argument denies the
respondent the power to disclose the information that it says that the public interest requires
it to be able to publish.
[63]
Fifth, section 5(5) does not bear the weight that the petitioner puts on it. It should be
interpreted in accordance with the principle that the legislator is presumed to legislate in the
32
knowledge of and having regard to relevant judicial decisions: eg R Robinson v Secretary of
State for the Home Department [2019] 2 WLR 897 at [62]. Those decisions include ones that
establish that an express statutory power implies reasonably incidental ancillary powers: eg
Re: Northern Ireland Human Rights Commission (Northern Ireland) [2002] HRLR 35 at [51]-[53].
Therefore section 5(5) permits the respondent to exercise her powers under the Act when to
do so is reasonably incidental to the Inquiry's terms of reference. In any event, the
documents are within the Inquiry's terms of reference for the purposes of section 5(5)
because they are full of information about the Inquiry's work and workings towards
fulfilling those terms of reference.
[64]
The respondent's interpretation of section 19 does not imply that every restriction on
disclosure or publication of a document given to an inquiry is necessarily lawful. Rather, it
means that the controls on restriction are found in the usual public law restraints on the
exercise of statutory powers.
[65]
The petitioner suggests another interpretation of section 19(1)(b); that it creates a
power to impose a restriction order "only in relation to matters falling within the Inquiry's
term of reference". It is unnecessary for the Court to consider this interpretation because the
petitioner advances it only in order to obtain remedies for the original restriction orders.
The interpretation would, however, have absurd results. A wide range of events could fall
within the scope of section 1. Section 17 gives an inquiry procedural autonomy. It is
inevitable that inquiries established under the Act will from time to time receive documents
containing matters that are outside the terms of reference. It would be very odd if an
inquiry were powerless to prevent disclosure of the matters irrespective of the interests
involved. The Inquiry provides a good example. Suppose that a person came forward and
informed it that he was the victim of serious sexual crime when he was 19, or when he was
33
under 18 but the crime took place in the home, outside Scotland or after 17 December 2014.
That information falls outside the Inquiry's terms of reference. Parliament cannot have
intended that the Inquiry would be unable to restrict, say, publication of the person's name
in those circumstances.
Bias
[66]
The Court should reject this ground of review for three reasons. First, the ground is
baseless on the petitioner's own averments. The replacement restriction order does not
forbid the petitioner from publishing anything in the ET1 or paragraphs 1 - 11 of the paper
apart to the ET3. The ET1 shows the bases of claim and the remedies sought: pp6 - 8 and 12.
The restriction order had no effect on the Employment Tribunal proceedings because the
respondent made it after the proceedings had come to an end.
[67]
Second, there is no apparent bias. The test is whether the fair-minded and informed
observer, having considered the facts, would conclude that there is a real possibility of bias:
Porter v Magill [2002] 2 AC 357 at [103]. That observer is neither unduly sensitive or
suspicious nor complacent but is assumed to have access to all the facts that are capable of
being known by members of the public generally: Gillies v Secretary of State for Work and
Pensions 2006 SC (HL) 71 at [17]. Being aware of these circumstances, the observer would
not conclude that there was a real possibility of bias when the respondent made the
restriction order and would take the following into account: (a) the risk to the integrity of
the Inquiry that publication of the material described in the restriction order would create;
(b) the respondent's long service in judicial office in accordance with the judicial oath; (c) by
its appointment under section 7(1)(a), 9(1) and 10(1), the Minister has shown himself to be
satisfied of the respondent's general impartiality; (d) the respondent is subject to the
34
reporting provision in section 9(3); (d) the Minister has not exercised its power under
section 12(3)(c); (f) the respondent's long service in the Inquiry; (g) there were no
proceedings extant in the Employment Tribunal when the respondent made the restriction
order; (h) under the respondent's leadership, the Inquiry published information about the
Employment Tribunal proceedings in its press release; (i) in granting the replacement
restriction order, the respondent permitted the media to publish more information about the
proceedings; (j) the petitioner is the only member of the media to have taken issue with
section 19 restrictions in relation to the proceedings and the replacement restriction order
allows it to publish what it says it should be able to publish; (k) the respondent published
her reasons for the restriction order and thereby submitted it to public scrutiny; (l) the
respondent gave the petitioner the ET3 for the purpose of this litigation. She would have
given it the rest of the documents for that purpose if the petitioner had not already obtained
them from Mr Halley.
[68]
Third, it was necessary for the respondent to make the restriction order. The Inquiry
requires the confidence of its participants and of the public in order to fulfil its statutory
purpose of allaying public concerns. Perceptions that the Inquiry is not sufficiently
independent from the Scottish Government have called that confidence into question in the
past. Although section 19(2)(a) gives the Minister the power to restrict disclosure or
publication under section 19(1)(b) by issuing a restriction notice, Ministerial intervention in
the workings of the Inquiry would compromise public confidence in the Inquiry's
independence. That is especially so because the application for the notice, and the
information necessary for the Minister to be able to take a rational view on it, would have to
come from the Inquiry and only the respondent could enforce the notice under section 36(1)
while the Inquiry is in progress. The natural justice rule against bias gives way to necessity:
35
see eg Wade & Forsyth, Administrative Law, 11
th
edition, at pp395 - 396. The doctrine of
necessity has been applied in cases in which no-one other than the person tainted by
apparent bias was empowered to act. There is no reason in principle why it should not also
apply when someone else is empowered to act but his exercise of the power would
compromise pursuit of the purpose of the statute that conferred it.
Discussion and reasoning
The Scottish Child Abuse Inquiry
[69]
The respondent was appointed as chair of the Inquiry in August 2016 following the
resignation of the previous chair, Susan O'Brien QC. She stepped down after Scottish
Ministers commenced a formal procedure under section 12 of the Act to have her removed.
Ms O'Brien brought proceedings against the Scottish Ministers in the Court of Session. That
action was dismissed by Lord Pentland: O'Brien v Scottish Ministers 2017 SLT 1113. Part of
Ms O'Brien's allegations at the time was of Government interference, a claim also made by
Professor Michael Lamb, a member of the Inquiry, who also resigned. Inevitably the row
generated adverse publicity. The respondent's productions include copies of newspaper
articles with headlines that include "Child Sex Abuse Survivors Insist Inquiry is `Not Fit For
Purpose'" (Scottish Daily Mail 6 July 2016) and "Infighting Leaves Abuse Probe In Mire As
Survivors Lose Confidence" (The National 6 July 2016).
[70]
Similar problems arose in the Independent Inquiry into Child Sexual Abuse in
England. That Inquiry is now on its third chair and some abuse victims have pulled out of
the Inquiry saying they had lost confidence in it.
[71]
I accept the submission made on the respondent's behalf that since taking office she
has had to rebuild the survivors' trust. The importance of the inquiry in establishing the
36
historical record of the physical, emotional and sexual abuse in institutions having the care
of children cannot be underestimated. But its importance goes beyond the immediate
confines of those affected to the wider community and society in which these events
occurred. Fundamental to the success of the Inquiry is the continued trust and confidence of
its participants, most especially the survivors of such abuse. It is important that the Inquiry
is seen to be impartial and independent of Government.
[72]
The Inquiry is advised by Anne McKechnie, an independent consultant forensic
clinical psychologist. She has produced a note that sets out the emotional and psychological
impact on those who were abused as children in the care system. She points out that
individuals who have experienced in care abuse are frequently mistrustful of authority;
they often believe that statutory agencies including central and local government are
conspiring to keep their abuse secret. This presents challenges to the Inquiry which has to
work hard to be "open, consistent and boundaried" in its communications.
"If our applicants perceive any, even relatively small, indications that we are being
secretive or are linked to agencies which have either directly or indirectly abused
them, they will lose faith in our ability to fulfil our terms of reference. ... they will
have lost a valuable opportunity to move forward resolving the consequences of
early trauma."
[73]
The courts recognise the impact of historic sex abuse on children. In MM v Criminal
Injuries Compensation Authority 2018 SLT 843 Lord Glennie quoted with approval an
observation of mine in M v Advocate General for Scotland 2014 SLT 481 at [20]:
"... those who have presided over trials of historic sex abuse of children are only too
aware of the deep psychological and emotional trauma that surrounds such criminal
activity."
[74]
The courts also recognise the extreme sensitivity of public opinion to allegations of
the sexual abuse of children and the concerns about the safety of children generally: eg the
remarks of Lord Sumption JSC in Khuja v Times News Newspapers Ltd [2019] AC 161 at [8].
37
[75]
The Dean of Faculty submitted that I should exercise restraint in dealing with
decisions of the Inquiry. He drew a parallel with specialist tribunals and the self-imposed
restraints which the courts have adopted when considering the reasoning and decision
making of a tribunal. He drew my attention to the remarks of Gross LJ in Hutton v Criminal
Injuries Compensation Authority [2016] EWCA Civ 1305; [2017] ACD 20 at [57], (again quoted
by Lord Glennie in MM) in summarising the relevant principles:
"... {The} Court should exercise restraint and proceed with caution before
interfering with decisions of specialist tribunals. Not only do such tribunals have the
expertise which the `ordinary' courts may not have but when a specialised statutory
scheme has been entrusted by Parliament to tribunals, the Court should not venture
too readily into their field."
[76]
I have no difficulty in accepting that the Inquiry should be treated as if it were a
specialist tribunal and due restraint shown when the Inquiry is acting within its terms of
reference, assessing evidence and making recommendations. This case however raises
issues of statutory interpretation, open justice, freedom of the press and impartiality. These
are fundamental to the working of our democratic institutions and the rule of law. These are
issues for this Court; they are not the particular preserve of the Inquiry. No restraint need
be observed in respect of these matters on the ground that the Inquiry is exercising a
specialist function.
Open Justice
[77]
I am satisfied that in relation to the replacement restriction order there is no breach of
the principle of open justice. Indeed the petitioner accepts that the material protected by the
replacement restriction order ought not to be in the public domain given its sensitive nature
and the effect that its publication would have on the Inquiry. Nevertheless Mr McBrearty
submits that the fact that there was, as the petitioner contends, a breach of the principle of
38
open justice in respect of the original restriction orders, is pertinent to a consideration of bias
in relation to the replacement restriction order. For that reason, and because of its
importance to the ability of the media to report court proceedings, it is necessary to deal
with the submissions by the parties.
[78]
The principle of open justice and the purpose it serves were set out by Lord Reed JSC
in A v Secretary of State for the Home Department 2014 SC (UKSC) 1 at [23], [25] ­ [27] and [41]:
"[23] It is a general principle of our constitutional law that justice is administered
by the courts in public, and is therefore open to public scrutiny. The principle is an
aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian
News and Media Ltd) v City of Westminster Magistrates' Court (para 1), society depends
on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes?
Who is to guard the guardians? In a democracy, where the exercise of public
authority depends on the consent of the people governed, the answer must lie in the
openness of the courts to public scrutiny."
"[25] The principle that courts should sit in public has important implications for
the publishing of reports of court proceedings. In Sloan v B (p442) Lord President
Hope, delivering the opinion of the court, explained that it is by an application of the
same principle that it has long been recognised that proceedings in open court may
be reported in the press and by other methods of broadcasting in the media. `The
principle on which this rule is founded seems to be that, as courts of justice are open
to the public, anything that takes place before a judge or judges is thereby necessarily
and legitimately made public, and, being once made legitimately public property,
may be republished'."
"[26] The connection between the principle of open justice and the reporting of
court proceedings is not however merely functional. Since the rationale of the
principle is that justice should be open to public scrutiny, and the media are the
conduit through which most members of the public receive information about court
proceedings, it follows that the principle of open justice is inextricably linked to the
freedom of the media to report on court proceedings."
"[27] Since the principle of open justice is a constitutional principle to be found in
the common law, it follows that it is for the courts to determine its ambit and its
requirements, subject to any statutory provision. The courts therefore have an
inherent jurisdiction to determine how the principle should be applied."
"[41] ... Whether a departure from the principle of open justice was justified in
any particular case would depend on the facts of that case. As Lord Toulson
observed in Kennedy v Charity Commissioners (para 113), the court has to carry out a
balancing exercise which will be fact specific. Central to the court's evaluation will
39
be the purpose of the open justice principle, the potential value of the information in
question in advancing that purpose and, conversely, any risk of harm which its
disclosure may cause to the maintenance of an effective judicial process or to the
legitimate interests of others."
[79]
In MH v The Mental Health Tribunal for Scotland 2019 SC 432, Lord Carloway LP,
noted at paras [16] and [18]:
"[16] The starting point in relation to the withholding of any information concerning
civil cases pending before the courts is to recognise that it is an interference with the
principle of open justice and the requirement that the courts should operate in a way
which is transparent to the public ... The reason for the principle is a fundamental
one; public scrutiny of the courts facilitates public confidence in the system. It helps
to ensure that the courts are carrying out their function properly."
"[18] Open justice has two key elements. The first is that proceedings are heard
and determined in public. The second is that the public has access to judicial
determinations, including any reasons for them and the identity of the parties."
[80]
In Dring v Cape Intermediate Holdings Ltd [2019] 3 WLR 429 Lady Hale PSC observed
at paras [41], [42] and [44]:
"[41] The constitutional principle of open justice applies to all courts and tribunals
exercising the judicial power of the state. It follows that, unless inconsistent with
statute or the rules of court, all courts and tribunals have an inherent jurisdiction to
determine what the principle requires in terms of access to documents or other
information placed before the court or tribunal in question."
"[42] The principal purposes of the open justice principle are two-fold and there
may well be others. The first is to enable public scrutiny of the way in which courts
decide cases - to hold the judges to account for the decisions they make and to enable
the public to have confidence that they are doing their job properly."
"[44] It was held in Guardian News and Media [2013] QB 618 that the default position
is that the public should be allowed access, not only to the parties written
submissions and arguments, but also to the documents which have been placed
before the court and referred to during the hearing."
[81]
Lady Hale went on to explain that although the court has power to allow access, the
applicant has no right to be granted it. It is for the person seeking access to explain why he
seeks it and how granting him access will advance the open justice principle. The media
will be better placed than others to demonstrate a good reason for seeking access. In
40
exercising that power the court has to carry out a balancing exercise. On the one hand will
be the principle of open justice and the potential value of the information in question in
advancing that purpose. On the other hand will be any risk of harm which its disclosure
may cause to the maintenance of an effective judicial process or the legitimate interests of
others. There may good reasons for denying access (paragraphs 45 and 46).
[82]
Drawing these strands together the following points seem relevant for this
discussion;
1.
It is an aspect of the rule of law in a democracy that the courts are open to the
public.
2.
The rationale for the principle of open justice is to ensure public scrutiny and
to hold judges to account.
3.
The principle applies to all courts and tribunals and mutatis mutandis to
judges sitting as a chair of a public inquiry.
4.
Each court or tribunal has an inherent jurisdiction to determine how the
principle of open justice should be applied to proceedings before it.
5.
The media have the right to report on all proceedings held in public.
6.
The right to report on proceedings extends to a right to have access to
documents which are before the court. This right is not automatic.
7.
It is for the court or tribunal before whom the proceedings are taking place to
regulate access to its proceedings and to documents which are before it. In doing so
it conducts a balancing exercise between, on the one hand, the principle of open
justice and, on the other hand, the risk of harm that disclosure may cause to the
administration of justice and other legitimate interests.
41
8.
The withholding of any information concerning civil cases before the court is
an interference in the principle of open justice. Accordingly there is a presumption
in favour of disclosure.
9.
The principle of open justice extends to judicial determinations, including any
reasons for them and to the identity of the parties.
[83]
Applying these principles in this case it was for the Employment Tribunal to
determine the application of the principle of open justice to the proceedings before it,
including access to documents and to the names of the parties. In carrying out that function
the Employment Judge would have required to have balanced the principle of open justice
with the harm that could flow to the administration of justice and other legitimate interests.
In this case that would have involved a consideration of the effect that publication or
disclosure of the confidential and sensitive parts of the documents would have had on the
interests of the Inquiry.
Are the declarators and orders sought in respect of the original restriction orders academic?
[84]
One of the recognised limits on the right to a legal ruling is when the issue that is
being litigated is deemed hypothetical or academic. These limitations were considered by
the First Division in Wightman v Secretary of State for Exiting the European Union 2019 SC 111
[85]
Lord Carloway LP at [22] said that "in a case where there are no petitory conclusions,
the declarator must have a purpose. It "must be designed to achieve some practical result".
In Wightman the issue was whether or not the Court should consider issuing a declarator as
to whether or not the United Kingdom could unilaterally revoke its notification under
article 50 of the Treaty on European Union to leave the European Union. At that time there
was no proposal before Parliament to invoke article 50, and we now know that option was
42
never actively considered by Parliament. Nevertheless the Court held that Members of
Parliament had an interest in seeing the uncertainty about the legal competence of revoking
the notification in advance of a vote on the ratification of an agreement between the UK
Government and the EU Council in terms of the European Union (Withdrawal) Act 2018.
The Court said that it was not advising Parliament nor seeking to influence Parliament but
declaring the law as part of its essential function of the Courts in ensuring the preservation
of the rule of law. Accordingly the Court made a reference to the Court of Justice of the
European Union for a preliminary ruling under article 267 of the Treaty on the Functioning
of the European Union seeking an answer as to whether the article 50 notification could be
unilaterally revoked by the United Kingdom.
[86]
In R (on the application of Dolan and others) v Secretary of State for Health and Social Care
and anr [2020] EWCA Civ 1605 the Court of Appeal in England and Wales considered an
application for judicial review against regulations made by the Secretary of State in response
to the Covid-19 pandemic. By the time of the hearing for permission the regulations which
were the subject of the judicial review had been repealed and replaced by new regulations.
The Court held that the claim was "clearly academic" (para 39). The crucial question was
whether the Court should nevertheless permit the claim for judicial review to proceed in the
public interest. Lord Burnett of Malden LCJ giving the opinion of the Court referred to the
principle which governed the exercise of the Court's jurisdiction to hear judicial review
cases which have become academic as set out by Lord Slynn of Hadley in R v Secretary of
State for the Home Department, ex parte Salem [1999] 1 AC 450. Lord Burnett noted at
paragraph 40:
"There is a discretion to hear disputes which have become academic but the
discretion, even in the area of public law, must be exercised with caution; appeals
which are academic between the parties should not be heard `unless there is a good
43
reason in the public interest for doing so'. By way of example (but stressing that this
was only by way of example) Lord Slynn said:
`When a discrete point of statutory construction arises which does not involve
detailed consideration of facts and where a large number of similar cases exist
or are anticipated so that the issue will most likely need to be resolved in the
near future.'"
[87]
One of the grounds of judicial review in Dolan was an attack on the vires of the
regulations. The Court concluded that it would serve the public interest if the Court was to
consider the issue rather than leave it to be potentially raised as a defence to criminal
proceedings in the Magistrates Court. Moreover the question whether or not the Secretary
of State had the vires to make such regulations continued to be a live issue as new
regulations continued to be made under the same enabling power. The Court thus granted
permission but only in relation to the vires ground. The Court proceeded to hold that the
Secretary of State had the power to make the impugned regulations.
[88]
In both these cases there was a practical result in the sense that they answered a
question which was necessary for future decision makers. In both cases there was a
considerable public interest in the Court deciding the issue before them. In Wightman the
practical result was advice given to Members of Parliament in the event that they were
called upon to consider the unilateral revocation of the article 50 notification as an option
when considering the withdrawal agreement. In Dolan the Court of Appeal's decision
effectively removed a potential defence to prosecutions in the Magistrates Courts for
breaches of the regulations. It also enabled the Secretary of State to make further regulations
under the same enabling power. That was particularly important to enable the Government
to deal with the global Covid-19 pandemic.
[89]
The attack on the original orders is now academic. They were both repealed by the
restriction order made by the respondent on 2 March 2020. The question then is whether or
44
not in the exercise of the Court's discretion I should now consider the declarators sought in
relation to the original restriction orders. The petitioner argues that there are a number of
reasons why the Court should consider the orders sought in respect of the original
restriction orders.
[90]
First it says that these were the orders in place at the time these proceedings were
raised. "It is not in the gift of the respondent to vary the restriction orders with the effect of
avoiding an adverse finding against her." That is plainly wrong. The respondent has power
under section 19 of the Act to make, vary and revoke restriction orders. Whether such steps
are done to avoid an adverse finding against her is neither here nor there. It might be
thought to be a prudent and wise exercise of her discretion in the light of the arguments
made by the petitioner in the course of the proceedings.
[91]
It was also submitted that it was necessary to determine the issue as it was relevant
to expenses. I do not accept that argument. Expenses are a matter of discretion for the court
and can be dealt with on submissions taking into account such factors as change of position
by one of the parties in response to the litigation.
[92]
Mr McBrearty also submitted that the respondent is performing a statutory function
and it is in the public interest that the issues raised relating to the original restriction orders,
including vires, bias and potential breaches of article 10 ECHR are determined. News, he
submitted, is a perishable commodity and the restriction orders interfered with the
petitioner's right to report matters in the public interest. Again I do not accept that
submission. In the first place the issues of statutory interpretation and apparent bias are
raised with the replacement order. Secondly the factual background is almost certainly
unique. It will not be often that the chair of a public inquiry is the respondent in a claim in
the Employment Tribunal. Thirdly while it is true that the orders restricted the reporting of
45
proceedings in the Employment Tribunal the orders are no longer in force. By the time of
the hearing before the Employment Tribunal the petitioner could report the fact of the claim
and the submissions before the hearing. For these reasons I do not consider that there are
wider issues of public interest to be addressed by an examination of restriction orders which
are no longer in force or to the alleged failure to revoke or vary these orders.
Does the petitioner require permission to bring the replacement restriction order under
review?
[93]
In MIAB v Secretary of State for the Home Department 2016 SC 871 the First Division
considered the issue of amendment of a petition to bring in new grounds of review after
permission had been granted generally. Lord Carloway LP at [64] noted that the terms of
section 27B of the Court of Session Act 1988, as amended, provided for the granting of
permission in respect of particular grounds only. It followed that since permission could
only have been given for the grounds stated in the original application such permission
must also be necessary for any new grounds introduced later.
[94]
Here the averments in respect of the replacement restriction order were introduced
in the course of adjustment rather than by minute of amendment. Accordingly the Court
was not asked to allow the amendment. The petitioner submits that all of the restriction
orders have to be regarded as one exercise of a statutory power raising exactly the same
grounds. The Court granted permission to proceed on the basis of vires, bias and breach of
article 10. Vires and bias are live issues in respect of the replacement restriction order. The
argument appears to be that this raises no new grounds, merely a different target.
[95]
In my opinion that approach is wrong as a matter of law. Section 27B requires the
identification of a decision or the exercise of the power which gives rise to the application to
46
the supervisory jurisdiction of the Court. The respondent exercised the power under
section 19 of the Act on three occasions. The petitioner has been given permission to bring
two of them under review. It does not have permission in respect of the third occasion. In
my opinion the petitioner requires permission to bring each separate exercise of the power
under review. One way of testing this is to ask whether a separate petition could be brought
in respect of the third exercise of power. If it would be competent to bring separate
proceedings then permission is required under section 27B. Clearly the petitioner could
have brought separate proceedings and accordingly permission to do so was required.
[96]
The petitioner submits in the alternative that if permission is required I should now
give permission. It may be thought somewhat artificial given that parties were engaged on
these issues at the substantive hearing. Nevertheless the point was taken by the respondent
and requires to be addressed.
[97]
The test is whether or not the application has real prospects of success. That test is
clearly met in respect of the replacement restriction order. Had I been asked to grant
permission I would have done so. The Court granted permission to bring the original
restriction orders under review on the same grounds raised in respect of the replacement
restriction order, namely vires and apparent bias. Both issues have real prospects of success.
Insofar as it may be necessary to extend the time to bring the judicial review I consider it
equitable to do so standing the existence of these proceedings at the time the replacement
restriction order was made. Accordingly, I shall grant permission to bring proceedings for
judicial review against the making of the replacement restriction order.
47
Is there an alternative remedy?
[98]
The respondent submits that the petitioner has not exhausted alternative remedies.
In particular, because the respondent has the power to vary a restriction order under
section 20 of the Act the petitioner ought to have asked the respondent to exercise that
power to allow them to report any particular matter covered by the order. Only if she
refused to do so would the petitioner have cause to invoke the supervisory jurisdiction of
this Court.
[99]
There is no merit in this point. If the petitioner is correct that the respondent did not
have the power to make the restriction order then she did not have the power to vary it.
Moreover the respondent had twice refused to vary the original orders and the petitioner
can be excused for having little confidence that she would exercise the power to vary the
order if requested a third time.
The grounds of challenge to the replacement restriction order
[100]
There are two grounds of challenge to the replacement restriction order. The
petitioner submits that on a proper interpretation of section 19 of the Act the respondent did
not have the power to make the order; the vires issue. Secondly it submits that the
respondent had an interest in the making of the order and accordingly acted with apparent
bias.
Vires
[101]
The respondent, as chair of the Inquiry, has the power under section 19(2) of the Act
to make restriction orders. The section is headed "Restrictions on public access etc.".
Subsection (1), so far as relevant, reads:
48
"(1)
Restrictions may, in accordance with this section, be imposed on­
(a)
...
(b)
disclosure or publication of any evidence or documents given,
produced or provided to an inquiry."
[102]
The restriction order must specify only those matters which the chair considers
"to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the
public interest, (my emphasis) having regard in particular to the matters mentioned in
subsection (4)."
[103]
Whether or not the respondent had the power to make the replacement restriction
order depends on the interpretation of that section. A statutory body can only act within the
powers conferred on it by Parliament. The exercise of a power may be expressly authorised,
or it may depend on whether what is done can fairly be regarded as incidental to or
consequential upon what has been authorised. The approach to be taken to the exercise of a
power not expressly authorised was discussed by Lord Hutton in Re: Northern Ireland
Human Rights Commission [2002] HRLR 35 at [53] and 54:
"53.
In my opinion the authorities show that a liberal approach should be
adopted. In Att-Gen v Great Eastern Railway Company Lord Selborne LC stated at 478:
`It appears to me to be important that the doctrine of ultra vires, as it was
explained in that case [Ashbury Railway Carriage and Iron Co v Riche
(1875) LR 7 HL 653], should be maintained. But I agree with James LJ that this
doctrine ought to be reasonably, and not unreasonably, understood and
applied, and that whatever may fairly be regarded as incidental to, or
consequential upon, those things which the Legislature has authorised, ought
not (unless expressly prohibited) to be held, by judicial construction, to be
ultra vires .'
54.
It is also relevant to note that Lord Selborne then recognised that acts may be
intra vires `on the ground that they are such acts, on the borderline between
authority and no authority, as may reasonably be thought incidental to the exercise
of powers expressly given'. Lord Blackburn stated a 481: `My Lords, I quite agree
with what Lord Justice James has said on this first point as to prohibition, that those
things which are incident to, and may reasonably and properly be done under the
main purpose, though they may not be literally within it, would not be prohibited.'
But to the extent that there may be a difference, I consider that later authorities have
followed the approach of Lord Selborne. In Trustees of Dundee Harbour v D & J
49
Nicol [1915] AC 550 at 570 Lord Parmoor stated: `It is settled law that a body such as
the appellants, constituted by statute, have no authority except such as Parliament
has conferred upon them, and that they must find a sanction for any powers which
they claim to possess in their incorporating statute or statutes. These powers may be
expressly authorised or implied as fairly incidental to what is expressly authorised.'
55.
In Att-Gen v Smethwick Corporation [1932] Ch 562 Lord Hanworth MR, after
referring to the authorities, stated at 577:
`We have, therefore, the direction of the House of Lords that if the enterprise
we are considering is incidental to or consequential upon those things which
the Legislature has authorised, it ought not to be held to be ultra vires.'"
[104]
The issue is whether the making of the replacement restriction order was expressly
authorised by section 19 or whether its exercise might be regarded as incidental to or
consequential upon that which is authorised.
[105]
Section 5(5) of the Act provides that functions conferred by the Act on an Inquiry
panel are exercisable only within the terms of reference. The petitioner submits that the
Inquiry only has the power to investigate matters within its terms of reference and cannot go
beyond them. That is true. However the petitioner goes further and links "function" to
investigation. That in my opinion is where the petitioner falls into error. "Function" is not
confined to the taking of evidence, writing a report or making recommendations.
"Function" must also include matters which are fairly regarded as incidental to or
consequential upon the establishment of the Inquiry. So for example section 11(2) provides
for the chairman, during the course of the inquiry, to appoint assessors. In exercising that
power a chairman would be exercising a function conferred on her for the purpose of the
inquiry. The Act provides for the payment of counsel (section 39) and in engaging counsel
the Chair is exercising a function conferred on her by the Act. What section 5(5) constrains
is the widening of the scope of an inquiry; Re Royal Commission on Licensing
[1945] NZLR 665. It does not prevent the chair carrying out those things which are necessary to
50
conduct an inquiry, such as the establishment of an office, the appointment of assessors and
the engagement of staff.
[106]
Mr Halley's appointment was by virtue a letter of appointment/instruction from the
then Chair of the Inquiry, Susan O'Brien QC to Mr Halley dated 4 September 2015. The
claim made by Mr Halley in the Employment Tribunal arises out of his engagement as
counsel and was made against the respondent in her capacity as Chair of the Inquiry, not as
a private citizen or as Senator of the College of Justice or any other capacity. It must
therefore follow that in responding to the claim the respondent was carrying out a function
which was incidental to and consequential upon the respondent's appointment as Chair of
the Inquiry.
[107]
Accordingly in exercising the function under section 19 the respondent's powers are
not limited to the investigation of the matters contained in the terms of reference but extend
to those matters which are necessarily consequential to the investigation.
[108]
The petitioner submits that section 19 has to be read with section 18 and the phrase
"documents given, produced or provided to an inquiry" which appears in both sections has
to be construed in the same way. Section 18 provides for public access to inquiry
proceedings and information and provides a duty on the chairman. The petitioner further
submits that the function conferred on the chairman under section 18 must be read in
accordance with section 5(5), with the result that section 18 only applies to documents which
are ingathered by the inquiry in the course of investigating the subject matter covered by the
terms of reference and to documents referred at the oral hearings of the inquiry. Thus, the
argument goes, the power under section 19 to impose a restriction order is constrained to
those documents ingathered by the inquiry in the course of their investigation. If the power
relates to any document given to the inquiry for any purpose then it is submitted the Chair
51
must take steps under section 18 to allow public access to it. That would produce the absurd
result, it is submitted, that, for example, private letters of congratulations addressed to the
Chair on her appointment and received in the Inquiry office would have to be made public.
[109]
I reject these submissions. In the first place for the reasons given above I am satisfied
that "function" has a broader meaning than that given by the petitioner and includes
matters which are incidental and consequential to the Inquiry fulfilling its terms of
reference.
[110]
Secondly, the duty in section 18 is "subject to any restrictions imposed by a notice or
order under section 19." Accordingly no duty arises under section 18 if the documents in
question are the subject of a restriction order under section 19.
[111]
Thirdly, the submission for the petitioner is that the duty is
"to take such steps as he or she considers necessary (my emphasis) to ... allow public
access to evidence and documents given, produced or provided to the inquiry."
In fact the duty on the Chairman is to take such steps as she considers reasonable. It is an
important distinction as the word "reasonable" implies a greater degree of discretion vested
in the chairman exercising the duty than might be implied in the petitioner's submission.
There could be no obligation on the Chair to allow public access to material which might, for
example, infringe the article 8 rights of any person involved in the Inquiry, or documents
received in confidence from, for example, the police, as happened in this case. Nor would
there be any obligation to give access to documents which did not truly relate to the subject
matter of the Inquiry or were frivolous or vexatious.
[112]
Fourthly, one has to have regard to the purpose of the section; it is to provide a
mechanism by which restrictions on public access may be imposed to enable the inquiry to
fulfil its terms of reference or as required in the public interest. Thus it is to protect what
52
might be termed legitimate interests. A restriction order may be imposed on "disclosure or
publication of ... documents given, produced or provided to an inquiry". A literal reading
of that phrase might suggest that the Inquiry has to be the recipient of the document. That
would mean that an internal document could not be the subject of a restriction order. So if a
member of the team produced a precis of evidence heard in private, or a memorandum
about information received in confidence, such an interpretation would prevent the Chair
from making a restriction order in respect of it. That cannot have been Parliament's
intention. It points to purposeful interpretation.
[113]
Fifth, I reject the analogy which Mr McBrearty sought to draw between letters of
congratulations written to the Chair of the Inquiry and a claim form served on her by the
Employment Tribunal. There frankly is no comparison between a private letter written to
the Chair in a personal capacity, even if addressed to her at the Inquiry's office, and a claim
form served on her in her role as Chair of the Inquiry. Form ET1 and the paper apart were
documents which were given to the respondent in her capacity as Chair of the Inquiry. As
such they fall within the definition of documents given to the Inquiry
[114]
The petitioner had an alternative interpretation; section 19 might be interpreted by
focussing on the word "documents" in section 19(1) rather than the phrase "given, produced
or provided". On that view the restriction order, it is submitted, could be imposed in
respect of the disclosure or publication of any document, however the inquiry comes to hold
it, but only insofar as the as the document contains information falling within the terms of
reference. The problem with this interpretation is that it proceeds on the petitioner's
restrictive and erroneous interpretation of function under section 5(5).
[115]
The restriction order prohibits the disclosure or publication of ET1 paper apart and
the ET3 paper apart with the exception of paragraphs 1 to 11. These include sensitive
53
references to the internal workings of the Inquiry, information given to the Inquiry in
confidence by Police Scotland, information about a residential establishment which is under
scrutiny by the Inquiry and the subject of police investigation, and sensitive personal
information about Mr Halley. These are all matters which arise incidentally from the
exercise by the Inquiry of its functions within its terms of reference.
[116]
The power to make a restriction order is constrained by section 19(3) and (4). That is
recognised in the reasons given by the respondent for making the order. Having set out the
particulars of the harm or damage that would flow from the disclosure or publication the
respondent concluded that "it is conducive to the Inquiry fulfilling its Terms of Reference
and that it is necessary in the public interest to issue a restriction order". This reflects the
language of section 19(3). It was not suggested to me that the respondent had not properly
considered the matters set out in section 19(3) and (4).
[117]
There is one matter related to the original restriction orders which needs to be
addressed. The petitioner submits that the proper course of action for the respondent would
have been to have asked the Employment Tribunal to make an order rule 50 covering these
documents. Mr McBrearty pointed to what he said was an anomalous approach by the
respondent in seeking an order in these proceedings under the Contempt of Court Act 1981
and failing to seek an order from the Employment Tribunal. The petitioner however did not
submit that the fact that such an order could have been made by the Employment Judge
under rule 50 excluded or fettered the power of the respondent to make a restriction order. I
agree that it would have been competent for the Employment Judge to make such an order
under Rule 50 or an order. And while that would have been the appropriate course to take I
express no view on whether the fact that the Employment Judge could have made an
appropriate order excluded the power of the respondent to make a restriction order.
54
[118]
In this case however the proceedings before the Employment Tribunal are no longer
live. Accordingly when the replacement restriction order was made in March 2020 it was no
longer an option to request the Employment Judge to make an order. The material covered
by the restriction order is sensitive and requires to be protected. In those circumstances not
only was the respondent able to make such an order but, subject to considerations of bias,
she was bound to make the order.
Apparent bias
[119]
The test for apparent bias is set out in the dictum of Lord Hope in Porter v Magill
at [103];
"The question is whether the fair-minded and informed observer, having considered
the facts, would conclude that there was a real possibility that the tribunal was
biased."
[120]
Lord Hope gave a further description of a fair-minded and informed observer in
Helow v Advocate General for Scotland [2008] UKHL 62 at [2] and [3];
"[2]
The observer who is fair-minded is the sort of person who always reserves
judgment on every point until she has seen and fully understood both sides of the
argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v
Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with
that of the person who has brought the complaint. The real possibility test ensures
that there is this measure of detachment. The assumptions that the complainer
makes are not to be attributed to the observer unless they can be justified objectively.
But she is not complacent either. She knows that fairness requires that a judge must
be, and must be seen to be, unbiased. She knows that judges, like anybody else, have
their weaknesses. She will not shrink from the conclusion, if it can be justified
objectively, that things that they have said or done or associations that they have
formed may make it difficult for them to judge the case before them impartially.
[3]
Then there is the attribute that the observer is informed. It makes the point
that, before she takes a balanced approach to any information she is given, she will
take the trouble to inform herself on all matters that are relevant. She is the sort of
person who takes the trouble to read the text of an article as well as the headlines.
She is able to put whatever she has read or seen into its overall social, political or
geographical context. She is fair-minded, so she will appreciate that the context
55
forms an important part of the material which she must consider before passing
judgment."
[121]
The Dean of Faculty for the respondent submitted that in the circumstances of this
case a fair minded and informed observer would conclude that there was no apparent bias.
Mr McBrearty however submitted that the very fact that the respondent had an interest in
the subject matter of the restriction order was sufficient to disqualify her from making an
order. He founded on a series of cases where automatic disqualification was presumed.
[122]
In Dimes v The Proprietors of the Grand Junction Canal the Lord Chancellor had
presided in a case in which he had an interest as a shareholder in one of the parties. The
decree was set aside. Lord Campbell expressed the view that that "the maxim that no man
is to be a judge in his own cause should be held sacred" (p793). In Pinochet the House of
Lords followed Dimes in setting aside its earlier decision because one of the judges,
Lord Hoffman, was an unpaid director and chairman of company which was wholly owned
by Amnesty International. Amnesty International had campaigned against Pinochet and
had intervened in the case. Dimes was again followed in Locabail (UK) Ltd v Bayfield
Properties Ltd & Ors [2000] QB 451. The Court of Appeal in England and Wales held that
there was one instance where the existence of bias is effectively presumed and that was
where the judge is shown to have an interest in the outcome of the case. Lord Bingham LCJ
giving the decision of the Court at [7] said
"The basic rule is not in doubt. Nor is the rationale of the rule: that if a judge has a
personal interest in the outcome of an issue which he is to resolve, he is improperly
acting as a judge in his own cause; and that such a proceeding would, without more,
undermine public confidence in the integrity of the administration of justice."
[123]
Lord Bingham added at [8] that the question was not whether the judge has some
link with a party involved in a cause but whether the outcome of that cause could
realistically affect the judge's interest.
56
[124]
These cases predated Porter v Magill. Yet it is possible to see the influence of the
doctrine of automatic disqualification remaining in subsequent case law. In Davidson v
Scottish Ministers the House of Lords held that the involvement of Lord Hardie the former
Lord Advocate in a case which raised a question about the interpretation of section 21 of the
Crown Proceedings Act 1947 as it applied to Scottish Ministers was tainted by apparent bias.
As Lord Advocate, Lord Hardie had promoted the Scotland Bill in the House of Lords and
during a debate given his opinion on the effect of section 21 on Scottish Ministers. In his
speech Lord Bingham at [6] said:
"[A] judge will be disqualified from hearing a case (whether sitting alone, or as a
member of a multiple tribunal) if he or she has a personal interest which is not
negligible in the outcome, or is a friend or relation of a party or a witness, or is
disabled by personal experience from bringing an objective judgment to bear on the
case in question. Where a feature of this kind is present, the case is usually
categorised as one of actual bias. But the expression is not a happy one, since `bias'
suggests malignity or overt partiality, which is rarely present. What disqualifies the
judge is the presence of some factor which could prevent the bringing of an objective
judgment to bear, which could distort the judge's judgment."
[125]
While at first glance this might have the appearance of automatic disqualification,
the House of Lords nevertheless applied the Porter v Magill test, Lord Bingham finding
at [17]:
"The fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that Lord Hardie, sitting judicially, would
subconsciously strive to avoid reaching a conclusion which would undermine the
very clear assurances he had given to Parliament."
[126]
In R (on the application of Darho Kaur) v Institute of Legal Executives Appeal
Tribunal [2011] EWCA Civ 1168, the Court of Appeal in England and Wales attempted
to reconcile what it saw as a jurisprudential issue between the Dimes/Ex p Pinochet (No 2)
doctrine and the doctrine of apparent bias as set out in Porter v Magill. Rix LJ found
57
assistance in what he described as the illuminating observations of Lord Bingham in
Davidson v Scottish Ministers at [6] and [7]. He concluded [45],
"In these circumstances, it seems to me that by now it may be possible to see the two
doctrines which remain in play in this appeal as two strands of a single over-arching
requirement: that judges should not sit or should face recusal or disqualification
where there is a real possibility on the objective appearances of things, assessed by
the fair-minded and informed observer (a role which ultimately, when these matters
are challenged, is performed by the court), that the tribunal could be biased. On that
basis the two doctrines might be analytically reconciled by regarding the `automatic
disqualification' test as dealing with cases where the personal interest of the judge
concerned, if judged sufficient on the basis of appearances to raise the real possibility
of preventing the judge bringing an objective judgment to bear, is deemed to raise a
case of apparent bias."
[127]
It is difficult to reconcile automatic disqualification with an objective test. If bias
follows automatically from a certain set of circumstances then there is no need to apply a
test. What I understand Lord Bingham in Davidson and Rix LJ in Darsho Kaur to be saying is
that where the judge has an interest in the outcome of a case the fair-minded an informed
observer is most likely to conclude that there is a real possibility that the tribunal is biased.
The test in Porter v Magill is not supplanted by the doctrine of automatic disqualification in
these cases but in certain circumstances, of which Davidson and Darsho Kaur are examples, it
would be almost impossible for the fair-minded and informed observer to reach any other
conclusion. Confirmation that the test in Porter v Magill is still to be applied in such cases
can be seen from Lord Bingham's speech in the House of Lords in Davidson at [17].
[128]
Mr McBrearty's primary positon was that the very fact that the respondent had a
direct interest in the subject matter of the restriction order was sufficient to demonstrate
apparent bias notwithstanding the terms of the restriction order. I reject that submission.
The circumstances here are far removed from any of the cases cited to me. In making the
restriction order the respondent was not deciding a case brought before her in a judicial
capacity. She was not sitting in judgement. She was not determining a litigant's civil rights
58
or obligations. The restriction order had no impact on the case brought against her in the
Employment Tribunal. Even if proceedings were still live the order could have no influence
or impact on the Employment Tribunal case. The petitioner concedes that the order does not
interfere with its article 10 rights and that it has no problem with its terms. A more intensive
consideration of the test is required.
[129]
Mr McBrearty submitted that the fair-minded and informed observer would have
regard to the history leading up to the granting of the replacement restriction order. The
original orders had prevented the reporting of even the fact of the claim against the
respondent. This offended the principle of open justice. The respondent had refused to vary
the orders on two occasions. She sought to persuade the Employment Tribunal to hold its
hearing in private and when the Employment Judge had refused to place an article 50 order
on the proceedings she had put out a press release which was, in some respects incomplete.
She had then sought to control the reporting of Employment Tribunal hearing by suggesting
that the petitioner's reporters should liaise with the Inquiry's lawyers and media consultants
who would advise on whether any aspect would infringe the restriction orders. Finally it
had taken her three months from the abandoning of the claim by Mr Halley to rescind the
original orders and make the new replacement order. She had only done so, he suggested,
in the face of the imminent substantive hearing. Given the lapse of time between the
withdrawing of Mr Halley's claim the reason given for the making of the replacement order,
that she was re-appraising the orders in the light of the claim's withdrawal, was
questionable.
[130]
The granting of the original restriction orders was in my opinion unwise. They
offended the principle of open justice. They prevented the petitioner and others from
reporting the names of parties to a case in the Employment Tribunal and reporting that a
59
claim had been made against the respondent which alleged discrimination, victimisation
and harassment. In making the orders in these terms the respondent left herself open to a
claim of bias which might have been difficult to counter. It was not necessary for her to
make these orders. There was another option open to her.
[131]
I am not satisfied however that the fair-minded and informed observer would start
with the background as outlined by Mr McBrearty. While the petitioner's concern about the
original restriction orders is understandable, as Lord Hope observed in Helow the approach
of the fair minded and informed observer must not be confused with that of the person who
has brought the complaint.
[132]
In my opinion the fair minded and informed observer would look first at the terms of
the order. She would note that it restricts the disclosure or publication of sensitive and
confidential material which it is accepted should not be in the public domain. She would
know through counsel's submissions that if the original restriction orders had the same
effect as the replacement restriction order it is unlikely that the petitioner would have
complained. Such an observer would appreciate the importance of the Inquiry to the
participants, particularly the survivors of abuse and the need to ensure that it retains the
confidence of the participants and the wider public. She would know that the respondent is
a senior and well respected judge who has worked hard to restore confidence in the Inquiry
following the resignation of the previous Chair.
[133]
Moreover when the restriction order was made in March 2020 the respondent did not
have the option of requesting an order from the Employment Tribunal under rule 50.
Proceedings were no longer live. The sensitive and confidential parts of the documents
required to be protected from disclosure or publication. The respondent knew that the
petitioner had a copy of ET1 and the paper apart. It had been given to it by Mr Halley in
60
breach, according to the respondent, of a written undertaking of confidentiality. While the
petitioner has taken an editorial decision not to publish any of the material, even if it were
free to do so, the respondent could not know whether the documents had been given to any
other media outlets.
[134]
I accept that requesting the Minister to make a restriction notice under
section 19(2)(a) was not a viable option. Given its history the respondent had a well-
founded concern to ensure that the Inquiry was kept at arm's length and independent from
Government. The risk to the integrity of the Inquiry and public confidence in it was too
great.
[135]
In March 2020 the respondent had no other option than to grant the order herself. I
accept therefore that it was necessary for her to grant the restriction order. In circumstances
such as these the courts have recognised that the responsibility for granting an order cannot
be shirked and the objection of interest cannot prevail: Wade & Forsyth, Administrative Law,
11
th
edition p396. Given the sensitive and confidential nature of the material protected by
the restriction order and the risk to the integrity of the Inquiry if it were made public the
respondent was right not to shirk that responsibility.
[136]
For these reasons I am not satisfied that the petitioner has demonstrated apparent
bias.
Decision
[137]
I will grant permission to review the restriction order dated 3 March 2020 on the
grounds of vires and apparent bias. Thereafter I shall sustain the third plea in law for the
respondent and dismiss the petition. I reserve the question of expenses.


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