[2015] CSOH 87
In the Petition of
Judicial Review of a decision of the Scottish Ministers dated 28 May
2015 to appoint Ms Susan O’Brien QC as Chair to the Historical Child
Abuse Inquiry in terms of section 4(1) of the Inquiries Act 2005
Act:  Duncan QC, Paterson;  Simpson & Marwick
Alt:  Haldane QC, Ross;  Scottish Government Legal Directorate
1 July 2015
On 28 May 2015 the Scottish Ministers appointed Ms Susan O’Brien QC to
chair an inquiry into historic child abuse in Scotland (“the Inquiry”).
 She is due to commence her duties on 1 July 2015.  The Inquiry will
take place in terms of the Inquiries Act 2005 (“the Act”).
The petitioners are religious organisations.  From the 1950s to
the 1970s, they both operated care homes for children in Scotland.
 Those homes will come under scrutiny in the course of the Inquiry.
In 2007 Ms O’Brien represented two clients in an appeal.  They sought
damages for alleged abuse from the first petitioner.  The claims failed
on a preliminary point.  The House of Lords held that they were time
barred:  AS v Poor Sisters of Nazareth 2008
SC (HL) 146.  In the course of her career, Ms O’Brien acted for other
individuals who alleged that they were the victims of abuse.  She also
assisted a pressure group that sought to change the law relating to time
Against that background, the petitioners challenge Ms O’Brien’s
appointment.  They seek reduction of the Scottish Ministers’ decision
dated 28 May.  The petitioners rely on the common law principle of
apparent bias.  They contend that a fair-minded and informed observer
would conclude that Ms O’Brien was moving from the role of adviser to
adjudicator in the same cause and that by appearing in AS, she had supported the claims of her clients.
The petitioners also contend that the Scottish Ministers were not
entitled to appoint Ms O’Brien, because she has a close association with
an interested party to the Inquiry, contrary to section 9 (1) of the
Mr Duncan appeared on behalf of the petitioners.  He emphasised that
they do not impugn the integrity of Ms O’Brien.  They accept that she
has no actual bias and that as the chair of the Inquiry, she would do
her level best to discharge her role fairly, taking into account the
positions of all the parties.
On behalf of the Scottish Ministers Ms Haldane submitted that the
petitioners had failed to identify any flaw in the decision-making
process.  She maintained that Ms O’Brien’s role in AS was a
restricted one.  All she did was to act as an advocate at the appellate
stage and present her clients’ case.  That did not compromise her
position.  Further, she had not moved from the role of adviser to
adjudicator because the Inquiry tribunal is not a court.  It cannot
determine liability.  In terms of the Act it can only make
recommendations. Accordingly the appointment decision should stand.
Mr Duncan accepted that the two issues of apparent bias and close
association stood or fell together.  Before turning to them, it is
necessary to give a fuller account of the background.
[9]        I begin with the facts in AS.
 The claims arose in this way.  A number of children alleged that they
had been the subject of abuse while living in homes operated by the
petitioners.  Many years after the events in question were said to have
taken place, they raised actions for damages.  They were met with a plea
of time bar.  In order to test the validity of that defence, the
claimants’ solicitors took forward two individual cases, which were
heard together.  Mr Colin McEachran QC acted as senior counsel in each
of them.  Both at first instance and in the reclaiming motion (appeal),
the court upheld the time bar plea.
The claimants decided to mount a further appeal.  As Mr McEachran had
retired from practice they instructed Ms O’Brien as their new senior
counsel.  She presented the case to the Judicial Committee of the House
of Lords.
[11]      In his speech (judgment), Lord Hope of Craighead stated:
appeals are concerned only with the issue of time bar. Before I explain
why this is so, I ought to mention that the issue should be seen in a
wider context. The allegations of child abuse which the appellants make
are grave enough in themselves. But your Lordships were told that
several hundred other actions have been raised against the same
religious order by other persons who lived as children in homes which
were run by it. Several hundred more have been raised against other
institutions, which ran children’s homes during the same period.” (para
Section 9(2) of the Act provides that a person must notify the Minister
in advance of any matters that could affect her eligibility for
appointment.  The relevant Minister is the Cabinet Secretary for
Education and Lifelong Learning (“the Cabinet Secretary”).  She
requested disclosure from Ms O’Brien in terms of that provision.
[13]      Ms O’Brien replied on 27 May 2015.  The material parts of the letter are as follows:
“Dear Minister,
National Historical Child Abuse Inquiry
have asked me to set out matters which might affect public perception
of my impartiality, as you intend to appoint me as Chair of the
Historical Child Abuse Inquiry.
far as I am aware, I do not have any direct interest in the matters to
which the Inquiry relates, nor to my knowledge, do I have a close
association with any persons who may be interested parties. I have had a
long career at the Scottish Bar, representing thousands of clients, so
it is difficult to recall all of the matters which might be relevant,
and it is important to record that I have seen none of the evidence
which has been gathered to date. All I can do is to take the Inquiry
Terms of Reference as my starting point, particularly the definition of
‘In Care’.
have at various times acted for the UK government (largely prior to
1999), and in particular, I acted for the Home Secretary in numerous
immigration cases, some of which may have involved migrant children.
Equally, I have often sued the UK government on behalf of clients, and
once in my personal capacity. I have represented many Scottish Local
Authorities and their predecessors, and sued on behalf of clients. I
have been instructed by the Scottish Ministers, and sued them on behalf
of clients. I acted for the defence in a brief career in the criminal
courts when I was young, and I once acted as an ad hoc Advocate Depute
more than a decade ago. I have visited Young Offenders Institutions and
Prisons, as a solicitor, as an Advocate, and as a part-time sheriff. I
have acted for the insurers of a residential children’s care home, and
for various educational institutions, in cases which did not involve
child abuse. I cannot recall acting for private boarding schools or List
D schools. On the other side, I have often acted for victims of
physical and sexual abuse, both in cases which relate to a long time
ago, and occasionally in claims which relate to the past decade, in
civil claims where they sought compensation. Some of those Pursuers were
suing religious groups. I have acted for victims, who tried to
challenge the existing law of Time Bar, taking a test case to the House
of Lords on the issue, and I assisted a legal pressure group which
unsuccessfully attempted to persuade the Scottish Law Commission to
change that law. I cannot recall acting for or against any Healthcare
establishments which provided long-term care for children. I have
sometimes been instructed by the Central Legal Office to represent
Health Boards and NHS Trusts, and I have often acted for people suing
them, and suing doctors or midwives, in medical negligence cases. I have
acted for many clients who have pursued Human Rights challenges to
legislation and rules, mostly in contexts unrelated to the subject
matter of the Inquiry, but including a case for a child who sought to be
released from detention when she was in care.
have about 20 years of judicial experience in four tribunals and
courts, and I have been trained to put out of my mind knowledge and
prejudice which might have an impact on the case I am hearing. I believe
you can have confidence that my training and experience will minimise
any risk of compromise to the Inquiry.”
The Scottish Government web-site
The Scottish Government’s web-site has a page dedicated to the Inquiry.
 It contains hyper-links to Ms O’Brien’s letter, together with
three further documents that provide important background information.
(i)         The terms of reference of the Inquiry
[15]      The Inquiry’s terms of reference are as follows:
overall aim and purpose of this Inquiry is to raise public awareness of
the abuse of children in care, particularly during the period covered
by the Inquiry. It will provide an opportunity for public
acknowledgement of the suffering of those children and a forum for
validation of their experience and testimony. The Inquiry will do this
by fulfilling its Terms of Reference, which are set out below.
  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, 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 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. Within
    4 years (or such other period as Ministers may provide) of the date of
    its establishment, to report to the Scottish Ministers on the above
    matters, and to make recommendations. ”
  1. The Minister’s Statement [16]      The Cabinet Secretary made a statement to the Scottish Parliament on 28 May 2015 that includes the following passages:
    expect the inquiry to take a human-rights-based approach, to be
    inquisitorial rather than adversarial and to enable people with little
    experience of legal processes to engage with it. Crucially, the inquiry
    will examine the on-going effects of abuse on survivors and their
    families in order to improve our understanding of the issues they face
    and help us to improve support for them now and in future.

    all that into account, the inquiry needs a chair who can rise to those
    challenges while gaining and maintaining the confidence of survivors. I
    am pleased to announce that Susan O’Brien QC will chair the inquiry. Ms
    O’Brien is an experienced advocate in civil litigation, including on
    issues pertinent to the inquiry, and has a knowledge of and expertise in
    human rights.” (p 36)

    many of those who were abused in care as children called for the right
    to seek reparation. That would involve removing the time bar that
    requires a civil case for compensation to be brought to court within the
    three-year limitation period. At the heart of the issue is the reality
    of childhood abuse. It can take decades for a survivor to have the
    strength to challenge their abuser in court.

    listened to survivors and examined the legal position carefully, I can
    announce that this Scottish Government intends to lift the three-year
    time bar on civil action in cases of historical childhood abuse since
    September 1964.” (p 37)

    [17]      In response to a question from Iain Gray MSP following her statement, the Cabinet Secretary said:
    the 1980s, Ms O’Brien was also on the steering committee that set up
    the Scottish Child Law Centre. I am confident that we have struck the
    right balance with someone who has the necessary legal skills and
    experience and who also, crucially, understands first and foremost the
    needs of survivors.” (p 38)

    “What’s an Inquiry”
    The third document is dated 9 June 2015 and provides general guidance
    to members of the public about the Inquiry.  It states:

    inquiry is not designed to rule on anyone’s civil or criminal liability
    and has no power to do this. It may be that liability can be inferred
    from facts that come out of the inquiry, or from recommendations it

    It also states that “it is crucial that the inquiry has due regard for
    the human rights of all groups involved” including current or former
    staff in institutions and continues:

    with everyone’s human rights as a priority, we propose that the inquiry
    is about establishing the truth rather than attributing blame.”

    Does Ms O’Brien have a close association with an interested party?
    Mr Duncan first considered the common law challenge.  That appears to
    me to be the wrong starting point.  Primacy must be given to the
    legislation.  Accordingly, I begin with Section 9 (1) of the Act, which
    is headed “Requirement of impartiality”:

    “The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

    (b) a close association with an interested party,

    despite the person’s … association, his appointment could not
    reasonably be regarded as affecting the impartiality of the inquiry

    [21]      The Act does not define “close association”.  Plainly it could include a professional connection:  Public Inquiries
    ed. Beer (2011) para 3.49.  The nature of the connection must be
    examined with care.  In many instances an advocate could not be seen to
    have a close association with his client.  For example, he may only have
    had a fleeting involvement in the case, or accepted the instructions
    under “the cab rank rule” despite holding personal views entirely at
    odds with those of his client.  In others, however, the advocate may be
    identified with the cause he is espousing.  Someone who only acted for
    one client might be classified as having a close association with him.

    [22]      Assistance is provided by the Court of Appeal decision in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.  The opinion of the court (comprising Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) states:
    It would be dangerous and futile to attempt to define or list the
    factors which may or may not give rise to a real danger of bias.
    Everything will depend on the facts, which may include the nature of the
    issue to be decided. We cannot, however, conceive of circumstances in
    which an objection could be soundly based on the religion, ethnic or
    national origin, gender, age, class, means or sexual orientation of the
    judge. Nor, at any rate ordinarily, could an objection be soundly based
    on … previous receipt of instructions to act for or against any party…
    if in any case there is real ground for doubt, that doubt should be
    resolved in favour of recusal.” (480A-H)

    That captures the exercise that must be undertaken.  I therefore pose
    two questions.  First, is there some feature of Ms O’Brien’s involvement
    in AS that takes it away from the ordinary receipt of
    instructions?  I conclude that the answer is No.  She only acted for the
    claimants at a very late stage to argue a point of law.  I do not
    accept Mr Duncan’s submission that she “supported” the written
    pleadings, in the sense that she was seen to personally endorse their
    veracity.  She was not responsible for drafting the summons.  She simply
    advanced her clients’ case to the court.  If carrying out that task
    involves being identified with the cause, every advocate would have a
    myriad of close associations.  In Ms O’Brien’s case, that might amount
    to thousands.

    Second, is there a real ground for doubt?  Again I answer that question
    No.  Ms O’Brien’s narrative of her career discloses that she had a
    wide-ranging practice covering many areas of the law.  She represented
    pursuers and defenders.  In particular, she acted both for and against
    the government.  She could not be identified with only one side.  In
    addition, she has extensive judicial experience and swore the judicial
    oath as long ago as 1995.

    The fact that she assisted a pressure group to change the law on time
    bar appears to me to weigh lightly in the scales.  The petitioners do
    not contend that she actively or publicly campaigned for a change. In
    any event, there is widespread support for the proposal that the three
    year time limit should be altered.  The Cabinet Secretary stated that
    the Ministers intend to introduce legislation in this regard.

    Having regard to the whole circumstances, I hold that Ms O’Brien does
    not have a close association with an interested party to the Inquiry.

    In arriving at that conclusion, I note that the phrase “if it appears
    to the Minister” in section 9(1) indicates the high test that the
    petitioners must surmount.  They must establish that no reasonable
    minister could have made the decision in question.  In my view they have
    failed to do so.

    The Common Law Test
    The common law jurisprudence provides guidance on the relevant factors
    to take into account in relation to section 9(1), and acts as a cross
    check.  In Porter v Magill [2002] 2 AC 357 at para 103 Lord Hope stated:

    question is whether the fair-minded and informed observer, having
    considered the facts, would conclude that there is a real possibility
    that the tribunal was biased.”

    [29]      That statement echoes an earlier one made by Hewart CJ in R v Sussex Justices (ex parte McCarthy)
    [1924] 1 KB 256, which the petitioners say is the closest case on the
    facts.  There the police prosecuted M for dangerous driving following a
    collision with A.  The acting clerk to the justices that convicted M was
    a member of the firm of solicitors which acted for A.  In quashing the
    conviction, Lord Hewart stated (at p 259) that the question was whether
    the clerk:

    so related to the case in its civil aspect as to be unfit to act as
    clerk to the justices in the criminal matter. The answer to that
    question depends not upon what actually was done, but upon what might
    appear to be done.”

    [30]      A number of more recent cases have considered the question of apparent bias:  Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7;  Gillies v Secretary of State for Work and Pensions, [2006] 1 WLR 781;  Prince Jefri Bolkiah v Brunei [2007] UKPC 62;  and Belize Bank v AG Belize & Ors [2011] UKPC 36.  From them, I draw the following key propositions:

    1. Each case is intensively fact sensitive.
    2. The threshold for establishing a case of apparent bias is a high one.
    3. The fair-minded and informed observer takes a balanced approach.
    4. He
      expects that (a) the decision-maker will not be chosen to suit one
      party; and (b) any doubt will be based on objective grounds.
[31]      Kirby J outlined the knowledge and approach of the fair-minded and informed observer in his well-known judgment in Johnson v Johnson 2000 CLR 201:
attributes of the fictitious bystander to whom courts defer have … been
variously stated. Such a person is not a lawyer. Yet neither is he or
she a person wholly uninformed and uninstructed about the law in general
or the issue to be decided. Being reasonable and fair-minded, the
bystander, before making a decision important to the parties and the
community, would ordinarily be taken to have sought to be informed on at
least the most basic considerations relevant to arriving at a
conclusion founded on a fair understanding of all the relevant
circumstances. The bystander would be taken to know commonplace things,
such as the fact that adjudicators sometimes say, or do, things that
they might later wish they had not, without necessarily disqualifying
themselves from continuing to exercise their powers. The bystander must
also now be taken to have, at least in a very general way, some
knowledge of the fact that an adjudicator may properly adopt reasonable
efforts to confine proceedings within appropriate limits and to ensure
that time is not wasted. The fictitious bystander will also be aware of
the strong professional pressures on adjudicators (reinforced by the
facilities of appeal and review) to uphold traditions of integrity and
impartiality.” (para 53)
[32]      That petitioners contend that in this case the fair-minded and informed observer would note the following points:
  • The Inquiry will consider whether and to what extent individuals were abused in institutions such as Nazareth House.
  • Its over-arching aim is to “validate” the allegations of abuse.
  • Ms O’Brien
    will have to determine the veracity of allegations made by her former
    clients against the first petitioner and its staff.
  • She supported her clients’ claims by inviting the House of Lords to send their cases to proof.
  • Prior
    to the appointment of a chairman, the Scottish Ministers consulted
    extensively with victims’ groups to ensure that Ms O’Brien’s appointment
    would be acceptable.
In my view that list is flawed and incomplete.  It is flawed because
for the reasons given above, I hold that the fair-minded and informed
observer would be aware that the Inquiry will not determine liability
and that Ms O’Brien did not support her clients’ claims.  Further there
is no basis to make the assumption about the consultation process.
 Ms Haldane informed me that the Scottish Ministers did not consult with
victims’ groups about Ms O’Brien’s suitability for appointment.
The list is incomplete, because it leaves out of account a variety of
matters that would also be within the knowledge of the fair-minded and
informed observer.  He would have access to all the Inquiry documents on
the Scottish Government website.  He would note that it was “about
establishing the truth rather than attributing blame” and that
everyone’s human rights would be respected.
[35]      If he wished to find out about the role of an advocate, he could access the Faculty of Advocates Code of Conduct,
which is also available online.  He would take into account that
Ms O’Brien had a very broad based career, including some experience of
child abuse, but also involving some 20 years of judicial experience.
 He would note that she represented pursuers and defenders and that her
role in AS was a very limited one.
In my view, the fair-minded and informed observer would not conclude
that there is a real possibility that the tribunal was biased.  I
therefore hold that the common law challenge based on apparent bias also

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