Petition for judicial review of appointment of QC as child abuse inquiry chair refused
A legal challenge over the appointment of Susan O’Brien QC to chair an inquiry into historic child abuse in Scotland has been refused by a judge in the Court of Session.
The Congregation of the Poor Sisters of Nazareth and The Daughters of Charity of Saint Vincent de Paul sought judicial review of the decision of the Scottish Ministers to appoint Ms O’Brien - who had previously acted for alleged victims of abuse - as chair to the Historical Child Abuse Inquiry in terms of section 4(1) of the Inquiries Act 2005, relying on the common law principle of “apparent bias”.
However, Lord Woolman ruled that the “fair-minded and informed observer” would not conclude that there was a real possibility of bias.
The court heard that in 2007, two alleged victims of abuse had sought damages from the Poor Sisters of Nazareth, but their claims were held to be “time barred” and Ms O’Brien represented the two clients in an appeal before the House of Lords, which upheld the time bar plea.
The petitioners, both religious organisations who will come under scrutiny in the course of the inquiry, accepted that Ms O’Brien had “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.
However, while emphasising that they did not impugn the integrity of Ms O’Brien, they argued that a fair-minded and informed observer would conclude that she was moving from the role of “adviser to adjudicator in the same cause” and that by appearing in the appeal before the House of Lords, she had “supported her clients’ claims”.
The court was also told that in the course of her career, Ms O’Brien acted for other individuals who alleged that they were the victims of abuse, and that she had assisted a pressure group that sought to change the law relating to time bar.
The petitioners further submitted that the Scottish Ministers were not entitled to appoint Ms O’Brien because she had a “close association” with an interested party to the inquiry, contrary to section 9 (1) of the Act.
On behalf of the Scottish Ministers, it was said that the petitioners had failed to identify any flaw in the decision-making process.
It was submitted that Ms O’Brien’s role in the case of AS v Poor Sisters of Nazareth was a “restricted one” which “did not compromise her position” - all she did was to act as an advocate at the appellate stage and present her clients’ cases.
Further, the ministers maintained that she had not moved from the role of adviser to adjudicator because the “inquiry tribunal is not a court and cannot determine liability” - in terms of the Act it can only make recommendations.
The judge did not accept the petitioners’ submission that by inviting the House of Lords to send her clients’ cases to proof, Ms O’Brien “supported” their claims in the sense that she was seen to personally endorse their veracity.
In written opinion, Lord Woolman said: “She only acted for the claimants at a very late stage to argue a point of law. She simply advanced her clients’ case to the court.”
He added: “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.”
The judge considered that fact that she assisted a pressure group to change the law on time would only “weigh lightly in the scales”.
Lord Woolman therefore held that Ms O’Brien did not have a close association with an interested party to the inquiry.
The judge also held 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”.
“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 fails,” he concluded.