Inner House rules chair of Scottish Child Abuse Inquiry Lady Smith acted ultra vires in restricting publication of legal claims

Lord Carloway

About this case:

• Citation:
  [2022] CSIH 5
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

Three orders were issued under section 19 of the Inquiries Act 2005 after a former counsel to the Inquiry raised a claim against Lady Smith for discrimination. The original petition was dismissed by a Lord Ordinary in April 2021 after he found no ground of challenge had been made out.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Woolman and Lord Pentland. Kenny McBrearty QC appeared for the petitioners and Dean of Faculty, Roddy Dunlop QC, for the respondent.

Exercise of discretion

In July 2019, a former counsel to the Inquiry, John Halley, submitted a claim to the Employment Tribunal stating that he had been discriminated against on the grounds of disability. The respondent immediately issued a restriction order under the 2005 Act prohibiting the publication of the claim without her consent. A second order was issued in September 2019 when she lodged a response form to the claim.

Mr Halley ultimately withdrew his claim in December 2019. In light of this, the respondent issued a third order revoking the previous two orders and prohibiting publication only of a series of papers apart which referred to confidential workings of the Inquiry. It was held by the Lord Ordinary that this final order did not breach the principles of open justice, and that its making had not been ultra vires, with the challenges against the first two orders being dismissed as academic given that they were no longer in force.

The petitioners sought declarators that the restriction orders had been tainted by apparent bias and were ultra vires. The respondent had access to alternative remedies with which to deal with her concerns about the publication of the material, including under the law of defamation. Further, they argued that the Lord Ordinary had erred in holding that the respondent’s defence of the discrimination claim was incidental to her appointment as chair of the Inquiry.

Counsel for the respondent submitted that judicial review of the replacement order served no practical purpose. There was no good reason in the public interest for the court to entertain an academic judicial review of what was an exercise of discretion. Additionally, the publication of the information contained in the papers would be likely to impact adversely on the trust and confidence of those engaged with the Inquiry.

Collateral claim

Delivering the opinion of the court, Lord Carloway observed: “The present petition raises an important point about the powers of those chairing public inquiries to restrict publication of material which is the subject of other legal proceedings.  It touches upon, amongst other things, the principle of open justice and the Article 10 rights of the news media.  It is in the public interest that the media and chairs of inquiries are aware of their rights and obligations when performing their respective functions.”

On whether the respondent had the vires to issue the replacement order, he said: “There is no obligation to provide access to material which is not provided to the Inquiry in connection with its terms of reference, such as the existence of a collateral claim against the respondent for discrimination, harassment and victimisation.”

He continued: “The fact that Mr Halley had raised a claim against the respondent, which contained allegations of discrimination, did not relate to the proceedings of the Inquiry; ie the investigation into child abuse in Scotland.  It follows that the respondent had no power to make the restriction orders.  They were ultra vires.”

Addressing whether any alternative remedies were open to the respondent, Lord Carloway said: “There is force in the respondent’s contention that, as a generality, she must have the ability to take steps, in the public interest, to prevent, or restrict the publication of, information which would undermine the effectiveness of the Inquiry.  In so far as such steps are not afforded to the respondent as part of the Inquiry process under section 19, any remedy must be found elsewhere.”

He went on to say: “The principle of open justice is a cornerstone of the legal system.  Public scrutiny of courts and tribunals facilitates public confidence in the system and helps to ensure that they are carrying out their functions properly. It would require very special circumstances before a court or tribunal would be justified in prohibiting publication of the existence of a case pending before it.”

Lord Carloway concluded: “Sensitive and confidential material can legitimately be restricted, but very often it can be dealt with satisfactorily by anonymising the identity of the parties rather than concealing the subject matter of the dispute.  Even then, Lord Rodger’s answer [in Re Guardian News and Media (2010)] to his own question ‘What’s in a name’ (‘A lot’) should be borne firmly in mind.”

The reclaiming motion was therefore allowed, and the Lord Ordinary’s interlocutor recalled.