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  4. Religious bodies fail to block abuse inquiry chair appointment

Religious bodies fail to block abuse inquiry chair appointment

3rd July 2015

Two religious orders have failed in a challenge to the appointment of the Queen's Counsel who is to chair the Scottish Government's Historical Child Abuse Inquiry.

The Congregation of the Poor Sisters of Nazareth, and the Daughters of Charity of St Vincent de Paul, both of whom formerly operated children's homes that would come under scrutiny in the inquiry, petitioned for judicial review of ministers' decision to appoint Susan O'Brien QC to chair the inquiry. 

They founded on the common law principle of apparent bias, in that Ms O'Brien had acted in an appeal to the House of Lords by persons alleging historic child abuse and seeking to be excused from the operation of the time bar rule, and had assisted a pressure group that sought to change the law relating to time bar.

It was contended 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.

The petitioners also contended that Ms O’Brien had a close association with an interested party to the inquiry, contrary to s 9(1) of the Inquiries Act 2005.

Lord Woolman in the Court of Session rejected the challenge. He said the proper starting point was the Act, which had primacy. A professional association could be a "close association" in terms of s 9(1), but the nature of the connection had to be examined with care. In the case in question Ms O'Brien had only acted at a late stage of the case and on ordinary receipt of instructions. "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", Lord Woolman said.

Further, during her career Ms O'Brien had represented many different clients and acted both for and against the Government. There was no real ground for doubting her impartiality.

As respects the common law test, the fair mainded and informed observer would look at more factors than those founded on by the petitioners; they would be aware that the inquiry would not determine liability and that Ms O’Brien did not support her clients’ claims. The inquiry was officially stated to be “about establishing the truth rather than attributing blame”, and everyone’s human rights would be respected.

"In my view, the fair-minded and informed observer would not conclude that there is a real possibility that the tribunal was biased", Lord Woolman concluded. "I therefore hold that the common law challenge based on apparent bias also fails."

Click here to view the opinion.

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