Should the Chair of an Inquiry into historic child abuse recuse herself on the grounds that she had previously acted in a case against two of the parties who are likely to come under scrutiny? That was the issue before the Court of Session in Congregation of the Poor Sisters of Nazareth & Anor, for Judicial Review  CSOH 87.
On 28 May 2015 the Scottish Ministers appointed Ms Susan O’Brien QC to chair an inquiry under the Inquiries Act 2005 into historic child abuse in Scotland. She was due to commence her duties on 1 July 2015. The petitioners, the Congregation of the Poor Sisters of Nazareth and the Daughters of Charity of St Vincent de Paul, both operated care homes for children in Scotland between the 1950s and the 1970s; and those homes will come under scrutiny in the course of the Inquiry. The petitioners challenged Ms O’Brien’s appointment and sought reduction of the Scottish Ministers’ decision of 28 May.
In 2007 Ms O’Brien had represented two clients before the House of Lords in an appeal in which they sought damages from the Poor Sisters of Nazareth for alleged abuse. Both before the Outer House and on reclaimer, in which Colin McEachran QC had represented them, their claims had failed on the ground that they were time barred. McEachran QC had then retired and Ms O’Brien had appeared for the pursuers before the Judicial Committee . The Lords upheld the Inner House: AS v Poor Sisters of Nazareth 2008 SC (HL) 146, reported in BAILII as Bowden v Poor Sisters of Nazareth & Ors (Scotland)  UKHL 32. In the course of her career, Ms O’Brien also acted for other individuals who alleged that they were the victims of abuse and assisted a pressure group that sought to change the law relating to the time bar .
The petitioners relied on the common law principle of apparent bias, contending 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 and that by appearing in AS, she had supported the claims of her clients” .
They also contended that the Scottish Ministers had not been entitled to appoint Ms O’Brien because she had a “close association with an interested party” to the Inquiry, contrary to s 9 (1) of the Act . Counsel for the petitioners emphasised that they were not impugning her integrity and accepted that she had no actual bias and that she “would do her level best to discharge her role fairly, taking into account the positions of all the parties” .
As to the statutory test, Lord Woolman pointed out that the Act does not define “close association”, though, plainly, “it could include a professional connection” . He noted  the judgment in Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451, in which the Court of Appeal (comprising Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) had stated that:
“25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on … previous receipt of instructions to act for or against any party… if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.” (480A-H)
That, in Lord Woodman’s view, captured the exercise that must be undertaken.
“ … I therefore pose two questions. First, is there some feature of Ms O’Brien’s involvement in AS that takes it away from the ordinary receipt of instructions? I conclude that the answer is No. She only acted for the claimants at a very late stage to argue a point of law. I do not accept [the] submission that she “supported” the written pleadings, in the sense that she was seen to personally endorse their veracity. She was not responsible for drafting the summons. 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. In Ms O’Brien’s case, that might amount to thousands. Second, is there a real ground for doubt? Again I answer that question No. 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. In addition, she has extensive judicial experience and swore the judicial oath as long ago as 1995.  The fact that she assisted a pressure group to change the law on time bar appears to me to weigh lightly in the scales. The petitioners do not contend that she actively or publicly campaigned for a change. In any event, there is widespread support for the proposal that the three-year time limit should be altered. The Cabinet Secretary stated that the Ministers intend to introduce legislation in this regard.  Having regard to the whole circumstances, I hold that Ms O’Brien does not have a close association with an interested party to the Inquiry.”
As to the common law principle of apparent bias, the test was that enunciated by Lord Hope of Craighead in Porter v Magill  2 AC 357 at para 103:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased.” 
Lord Woolman concluded that, in the present case a fair-minded observer would not come to such a conclusion, for various reasons: inter alia,
- that the Inquiry was “about establishing the truth rather than attributing blame” and everyone’s human rights would be respected ;
- that Ms O’Brien had had a very broad-based career, including some experience of child abuse but also involving some twenty years of judicial experience;  and
- that she had represented both pursuers and defenders and her role in AS had been a very limited one .
So the common law challenge based on apparent bias also failed .
The three-year time bar is currently the subject of a Scottish Government consultation. The proposal is to remove the limitation period for victims of abuse, which will mean that anyone abused between 26 September 1964 and the present who wishes to raise a civil action for damages for personal injury will not be time-barred from doing so; however, for those whose abuse occurred before 26 September 1964 the current law of prescription will continue to apply: see Consultation on the Removal of the 3 Year Limitation Period from Civil Actions for Damages for Personal Injury for In Care Survivors of Historical Child Abuse.
Reading the judgment I couldn’t help being reminded of the recent controversy surrounding the appointment of Baroness Butler-Sloss to chair a similar inquiry in England and Wales: in her case after allegations that there were doubts about her impartiality because her late brother, Sir Michael Havers, had been Attorney General in the 1980s at the time of some of the abuses in question.
If the points about professionalism and the judicial oath applied to Ms O’Brien, they applied to Bs Butler-Sloss in spades: she had been a High Court judge since 1979, a Justice of Appeal since 1988 and had retired as President of the Family Division in 2005. But all the public and media sympathy was with the victims and overcame any rational assessment of the suitability of her appointment, while in the Scottish case it would be difficult to elicit much support for the alleged abusers.
But should public sentiment determine suitability for such appointments?