Inquiry chair's action against ministers following resignation dismissed

The Queen's Counsel who resigned as chair of the Scottish Child Abuse Inquiry complaining of Government interference, has had her action against ministers based on breach of contract and infringement of her human rights dismissed.

Lord Pentland in the Outer House of the Court of Session held that Susan O'Brien QC had failed to aver relevantly that she had a contract of which the Scottish ministers were in breach, or that her rights under article 8 of the European Convention were engaged by the defenders' decision to initiate the statutory procedure for terminating her appointment.

Ms O'Brien had been appointed chair from 1 July 2015 by a letter bearing to "confirm your appointment" to the inquiry, a Scottish inquiry in terms of the Inquiries Act 2005. A schedule setting out the terms of her appointment stated that she was not a servant or agent of the Criown, nor did its terms constitute a contract of employment or for services, before setting out the time commitment, daily fee and other matters. Ms O'Brien replied that she was "honoured to accept appointment as the chair".

In May 2016 a consultant clinical psychologist supporting the inquiry wrote expressing concerns about attitudes and beliefs she considered Ms O'Brien to have shown, and stating that her business would not be seeking to renew its contract. Counsel to the inquiry replied refuting the allegations, but after a meeting between Ms O'Brien and a senior civil servant, the minister wrote giving notice of a "proposed decision" to exercise the termination power on specified grounds, and setting out Ms O'Brien's right to make representations and to request that ministers consult other members of the inquiry panel.

Ms O'Brien exercised this right, but following further meetings, on 4 July she wrote resigning her position,  claiming that Government officials had sought to micro-manage and control the inquiry and that her position as independent chair had been "actively undermined" by some officials over the past months.

Her case was that the letter of appointment and her acceptance constituted a contract giving rise to mutual rights and obligations (though she did not claim it was a contract of employment or for services), made against the background of the Act. Separately, it was argued that the inquiry had to be seen to be independent of Government, and the termination power in s 12 of the Act therefore had to be exercised in a Convention compatible manner. As she was not physically, mentally or otherwise incapacitated for any reason from carrying out her duties, there was no proper basis to describe her as unable to carry out her duties in terms of s 12(3)(a).

Lord Pentland held that the proper analysis was that Ms O'Brien had been appointed to hold a statutory office under and in terms of the Act. The letter of appointment completed the appointment process and was not an offer capable of being accepted. While her time commitment and remuneratoin were separately set out, these provisions did not govern what was comprised in her statutory functions as chair of the inquiry. It followed that her averments of the existence of a contract were irrelevant, and with them also her case of breach of contract. Further, the implied terms on which she founded were not relevantly averred.

On her human rights case, the judge accepted that article 8 protected the right to personal development and the right to establish and develop relationships with other human beings and the outside world, and therefore did not exclude, in principle, activities of a professional or business nature, "because it is in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world". However her pleadings failed to set out a relevant case of infringement.

"I am satisfied that the defenders were entitled, in the circumstances of the present case, to take the view that they should undertake a statutory investigation into the question of whether the pursuer remained fit to hold an office, to which they had appointed her under and in accordance with the 2005 Act", he stated. "In my opinion, the defenders were entitled to take that step because it was an appropriate, proportionate and fair response to the issues of serious concern" which had been raised.

Section 12 embodied the principles on the fair exercise of administrative power set out in the case of Doody (1994). "Applying the principles to the circumstances of the present case," Lord Pentland continued, "there is nothing to displace the presumption that the defenders intended to exercise their statutory power of termination fairly; they were engaged in the process of carrying through an investigation that might or might not lead to a decision to terminate; the pursuer had the right to make representations before a decision was taken; and she was sufficiently informed of the case against her. In my view, there is nothing in the facts and circumstances of the present case to justify the allegations of unfairness which lie at the heart of the pursuer’s claims."

He observed: "Another difficulty for the pursuer stems from the fact that her appointment was not terminated; instead she chose to resign before the defenders had come to a decision as to whether to exercise their power of termination under s 12(3)... The pursuer cannot be said to have been forced to resign in any meaningful or realistic sense. She had engaged, personally and through her solicitors, in the investigative process up to a certain point; in my judgment, there was nothing in the defenders’ conduct or handling of that process to justify the pursuer in taking the view that the investigation and ultimate decision-making would not be carried out fairly."

As neither branch of the action had been relevantly pled, it fell to be dismissed.

Click here to view the opinion.