The BBC v The Rt Hon Lady Smith, Chair of the Scottish Child Abuse Inquiry
Feb 23, 2022
The orders were put in place to prohibit the reporting of information about an Employment Tribunal claim raised against the Chair by a former counsel to the Inquiry.
SCAI was established in 2015 to investigate and raise public awareness of the abuse of children whilst in care in Scotland. The Inquiry is creating a public record of the abuse it uncovers and determining which institutions and bodies failed in their duty to protect the children.
The first Chair to the Inquiry resigned in 2016 and the current Chair has worked successfully to rebuild trust.
In April 2019, the appointment of a junior counsel to the Inquiry was terminated. In July, 2019, the advocate submitted a claim to the Employment Tribunal claiming that he had been discriminated against on grounds of disability and seeking payment of £2.671 million. He said that he had become seriously ill in 2016.
The Chair responded that she had not been fully aware of the advocate’s health issues but, in any event, a conflict of interest had arisen in relation to his work for the Inquiry.
The Chair issued two restriction orders to prohibit the publication of the existence of Employment Tribunal claim, or associated documents, without her consent. The reason given was that the claim made detailed reference to the confidential business of the Inquiry and would damage its ongoing work.
The BBC applied to the Chair for a variation of the restriction orders to enable them to state that the Tribunal claim was taking place. The Chair, in turn, applied to the Employment Tribunal to have a scheduled hearing held in private. Both applications were refused.
The Chair issued a media release which stated that the advocate had raised the Tribunal proceedings. It included a note to editors advising that restriction orders prohibited the disclosure of any part of the claim, or the response, without the Chair’s consent. Following this, the BBC raised a judicial review at the Court of Session.
Meantime, the advocate withdrew his claim to the Employment Tribunal. In light of this, the Chair revoked the orders and issued a replacement order which permitted publication of the general nature of the abandoned claim.
The first instance judge who presided over the judicial review ruled that, because the original restriction orders had been replaced by one which did not breach the principles of open justice, the petition was now academic and should be dismissed.
The BBC appealed this decision. They argued that the original orders were irrational and that the Chair held a personal interest in the Tribunal claim. It was in the public interest to clarify the extent of the Chair’s powers over other tribunals in the justice system.
The Chair argued that the first instance judge’s decision should stand. A review would serve no purpose. There had been no apparent bias as any restrictions had been put in place to prevent a negative impact on the trust and confidence of those engaged with the Inquiry.
The First Division of the Court of Session accepted the BBC’s argument, ruling that it was important to clarify the powers of those chairing public inquiries to restrict publication of material which is the subject of other legal proceedings.
In delivering the opinion of the Court, the Lord President, Lord Carloway, said: “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.”
The Court ruled that the advocate’s claim against the Chair, which contained allegations of discrimination, did not relate to the proceedings of the Inquiry, which was to investigate child abuse. The Chair had no power to make the restriction orders. She had not, however, acted out of bias but had tried to limit what she perceived as material which would damage the efficient running of the Inquiry.
The ruling added that sensitive and confidential material can legitimately be restricted, but very often that can be dealt with by anonymising the identity of the parties.
The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.