British Broadcasting Corporation v Chair of the Scottish Child Abuse Inquiry
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Judgment Date | 23 February 2022 |
| Court | Court of Session (Inner House) |
| Docket Number | No 15 |
[2022] CSIH 5
Lord Boyd of Duncansby
First Division
Administrative law — Judicial review — Public inquiry — Making of restriction order by inquiry chair — Whether order ultra vires — Whether alternative to restriction order available to respondent — Whether order in breach of petitioners' rights under European Convention on Human Rights and Fundamental Freedoms — Whether order tainted by apparent bias — Whether order irrational — Whether subject-matter of petition academic — Inquiries Act 2005 (cap 12), sec 19
Section 5 of the Inquiries Act 2005 (cap 12) (‘the 2005 Act’) provides that functions conferred by the Act upon an inquiry panel are exercisable only within the inquiry's terms of reference. Section 18 provides that subject to any restrictions imposed by an order undersec 19, the chair of the inquiry must take reasonable steps to allow reporters to attend the inquiry and see records of evidence and documents produced or provided to the inquiry. Section 19 provides that restrictions may be imposed on the disclosure or publication of evidence or documents produced or provided to the inquiry only so far as the chair considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest.
Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (‘the 2013 Regulations’) provides that a tribunal may make orders with a view to preventing or restricting the public disclosure of any aspects of proceedings so far as is necessary in the interests of justice or in order to protect the Convention rights of any person.
Article 10(1) of the European Convention on Human Rights and Fundamental Freedoms provides that everyone has the right to freedom of expression. Article 10(2) provides, “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The respondent was the chair of the Scottish Child Abuse Inquiry. In July 2019, a claim of discrimination was made against the respondent in the employment tribunal by former counsel to the inquiry. The respondent issued a restriction order under sec 19(1)(b) of the 2005 Act prohibiting publication of the claim and any of the documents referred to in it without her consent. The respondent lodged a response form to the employment tribunal claim in September 2019. The respondent immediately issued a further restriction order under sec 19(1)(b) prohibiting publication of the response and any of the documents in it without her consent. In October 2019, the petitioners brought proceedings for judicial review of the respondent's decision to make the sec 19 orders. In December 2019, the employment tribunal claim against the respondent was withdrawn. In March 2020, a revised sec 19 order was made by the respondent. This restricted publication of certain parts of the employment tribunal claim and response and allowed publication of specified other parts.
The petition called before the Lord Ordinary for a hearing. The Lord Ordinary refused the petition. The Lord Ordinary held that the restrictions of July and September 2019 had been unwise but that any attack on them had become academic following the revised March 2020 restrictions. The March 2020 restrictions were intra vires. They were not tainted by bias. It was unnecessary to determine whether the July and September 2019 restrictions were irrational as the issue was academic. The petitioners reclaimed.
The petitioners contended that: (i) the orders sought in relation to the July and September 2019 restrictions were not academic; (ii) the orders were ultra vires of the respondent's powers under the 2005 Act; (iii) the respondent had an alternative remedy open to her under r 50 of the 2013 Regulations; (iv) the July and September 2019 orders had been incompatible with the petitioners' rights under Art 10 of the Convention; (v) the restriction orders were tainted by apparent bias; and (vi) the respondent's refusal to vary the July and September 2019 orders had been irrational. The respondent cross-appealed in relation to the Lord Ordinary's failure to address the issue of irrationality.
Held that: (1) even where a point could be said to be academic, the court may decide to determine the matter if it was in the public interest to do so and the petition raised an important point about the powers of chairs of public inquiries to restrict publication which it was appropriate for the court to address (paras 35–38); (2) sec 19 of the 2005 Act was engaged only where there was a duty to provide the material under sec 18, and the fact that there had been an employment tribunal claim against the respondent did not relate to the proceedings of the inquiry, with the result that the sec 19 orders were ultra vires (paras 39–41); (3) where material arose, the publication of which could not be prohibited by sec 19, it would have been open to the respondent to make an application to the employment tribunal under r 50 of the 2013 Regulations (paras 42–45); (4) the reasonableness of the respondent's refusal to vary the July and September 2019 orders had to be assessed on the assumption that the orders were intra vires and, viewed in that light, the respondent's decision was not irrational (paras 48, 49); and reclaiming motion allowed.
Observed that: (1) the principle of open justice was a cornerstone of the legal system and, while sensitive or confidential information could be legitimately restricted such as by anonymisation of the identity of parties, 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 (paras 44, 45); (2) standing the invalidity of the July and September 2019 orders, they could not be said to have been prescribed by law for the purposes of Art 10(2) of the Convention (para 46); and (3) the orders were not tainted by apparent bias, having not been made by the respondent in a cause depending before her but rather in the context of the proper administration of the inquiry with the respondent having no personal interest in them (para 47).
Wightman v Secretary of State for Exiting the European Union 2019 SC 111 and Keatings v Advocate General for Scotland2021 SC 329followed.
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R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd sub nom R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349; [2001] 2 WLR 15; [2001] 1 All ER 195; 33 HLR 31; [2001] 1 EGLR 129; [2000] EG 152 (CS); (2001) 98 (8) LSG 44; (2000) 150 NLJ 1855; (2001) 145 SJLB 39; [2000] NPC 139; The Times, 13 December 2000
R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450; [1999] 2 WLR 483; [1999] 2 All ER 42...
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