Outer House judge finds Scottish Child Abuse Inquiry reporting restrictions ‘unwise’ but necessary

A petition by the BBC challenging the restrictions placed upon the reporting of an Employment Tribunal claim worth over £2 million against the Scottish Child Abuse Inquiry has been refused by the Outer House of the Court of Session.

The chair of the SCAI, Lady Smith, who took over the Inquiry in 2016 following the resignation of its previous chair, ordered in July and September 2019 that details of the claim, raised by a former counsel to the Inquiry under the Equality Act 2010, could not be published or disclosed. The BBC sought a variation of the order to allow it to publish the existence of the claim and some details of the proceedings.

The petition was heard by Lord Boyd of Duncansby. The petitioner was represented by Kenneth McBrearty QC, and the respondent by Dean of FacultyRoddy Dunlop QC.

Judge in her own cause 

The Employment Tribunal claim was raised in July 2019 by the advocate John Halley following his dismissal from acting as counsel to the Inquiry. He alleged that the respondent had discriminated against him based on his disability as well as harassed and victimised him. The proceedings were ultimately abandoned in December 2019. 

Following the refusal of an order that the hearing be held wholly in private, the respondent issued two restriction orders under the Inquiries Act 2005 to prevent the disclosure of the documents forming the claim as well as the existence of the proceedings. A press release was later issued in October 2019 which revealed the existence of the claim. 

The respondent refused to vary the original restriction orders in October and November 2019 following correspondence with the BBC. In March 2020, the original restriction orders were revoked and replaced by less restrictive orders. The new orders still prevented the publication of the ET papers but allowed for the first eleven paragraphs of the response to the claim, the ET3 paper apart, to be published. 

The BBC, which did not seek permission to publish any confidential or sensitive material relating to the Inquiry or the ET proceedings, contended that the respondent had no power to make any of the restriction orders, and that the original orders were in breach of Article 10 of the ECHR insofar as they prohibited the disclosure of non-confidential parts of the documents. 

It was also submitted for the BBC that the decisions taken by the respondent not to vary the original orders were irrational, and that all of the restriction orders were tainted by apparent bias and interfered with the principle of open justice. The effect of issuing the restrictions was that the respondent had acted as judge in her own cause. 

The respondent denied that the orders were unlawfully granted or biased and submitted that any consideration of the original orders would be academic as they were no longer in effect. Further, the petitioner had not yet exhausted all the alternative remedies available to them before applying for a review. 

No other option 

In his opinion, Lord Boyd noted at the outset: “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.” 

Accepting the respondent’s submission that consideration of the original orders would serve no useful purpose, he said: “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 not in the exercise of the Court’s discretion I should now consider the declarators sought in relation to the original restriction orders.” 

Turning to the amended orders, Lord Boyd considered the submission that alternative remedies were available to the BBC, saying: “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.” 

Considering whether the respondent had the power to make the orders, he said: “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.” 

Lord Boyd then addressed whether the orders contained apparent bias, saying: “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 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.” 

However, he went on to say: “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.” 

Lord Boyd concluded: “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. 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.” 

For these reasons, the petition was dismissed.  

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