Susan O'Brien QC v The Scottish Ministers

The Court of Session has dismissed a claim by the former Chair of the Scottish Child Abuse Inquiry that a decision by the Scottish Ministers to instigate the process for terminating her appointment amounted to a material breach of contract and infringed her human rights. The following is a summary of the opinion of Lord Pentland.

On 4 July 2016 the pursuer, Susan O’Brien QC, wrote to John Swinney MSP, the Deputy First Minister and Cabinet Secretary for Education and Skills, advising that she had decided to resign as Chair of Inquiry with immediate effect.  

In the present action, the pursuer sought an order from the court declaring that the actions of the defenders, the Scottish Ministers, in invoking the procedure under section 12 of the Inquiries Act 2005 and seeking unilaterally to terminate her appointment constituted a material breach of contract and separately that the defenders’ actions were incompatible with her rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 

As reparation for her alleged losses arising from the defenders’ breach of contract and separately as just satisfaction for the infringements of her Convention rights, the pursuer sought damages in the sum of £500,000.  

The pursuer had been appointed with effect from 1 July 2015 and the Inquiry began work in or about October 2015. 

By letter dated 9 May 2016 Dr Claire Fyvie, Consultant Clinical Psychologist and Head of Service at the Rivers Centre for Traumatic Stress at the Royal Edinburgh Hospital wrote to the Inquiry’s secretary to express “concerns” about the Chair of the Inquiry and with the “attitudes and beliefs she appears to hold with regard to survivors of child abuse”; claims which were denied by the pursuer. 

Thereafter, by letter dated 20 May 2016 Craig French, Deputy Director of the Legal Services Directorate of the Scottish Government wrote to the pursuer to advise that, in terms of Section 12 of the Inquiries Act 2005, the Scottish Ministers proposed to exercise their power by notice to terminate her appointment as Chair and as a Member of the Scottish Child Abuse Inquiry. 

In response the pursuer, through her solicitors, wrote in detail to Mr French setting out her position and contending that there was no proper factual or legal basis for the steps that had been taken under and in terms of section 12 of the 2005 Act. 

Following further correspondence the pursuer and her legal representatives attended meetings with Mr Swinney and his officials; and representations were made on the pursuer’s behalf, but she later resigned. 

In her letter of resignation the pursuer said that she had decided to resign because she considered that she could not reassure the public that the Inquiry would be conducted independently of government; she also stated that her trust that the Scottish Government would actually respect the Inquiry’s independence had gone; and finally, she claimed that the Cabinet Secretary had left her with no alternative but to resign.  

The pursuer averred that the letter of 28 May 2015 offering her the post of Chair of the Inquiry and her acceptance by letter of the same date constituted a contract between the parties; that their legal relationship was established by this agreement between them; that this legal relationship gave rise to the parties’ mutual rights and mutual obligations; and that the agreement between the parties was made against the background of the 2005 Act, the provisions of which were part of the relevant factual matrix for the construction and proper interpretation of the terms (express and implied) of the parties’ agreement.  

It was the contract formed by these two documents that the defenders were said to have breached, but the judge dismissed the pursuer’s contractual case as “irrelevant”.  

Lord Pentland’s opinion states: “It is clear, on an ordinary and natural reading of its terms, that the letter of 28 May 2015 did not contain or put forward anything in the nature of an offer addressed to the pursuer.  It did not invite an acceptance or even a reply.  On the contrary, the letter said, in the first line, that the Cabinet Secretary was delighted to confirm the pursuer’s appointment as Chair of the Inquiry; that is not the language of a proposal, offer or invitation.  Two lines further down the letter stated that it was to serve as the formal written instrument of the pursuer’s appointment as Chair.  

“In my opinion, it is impossible to construe the Cabinet Secretary’s letter of 28 May 2015 as an offer of the post of Chair of the Inquiry.  Since it is that letter that forms the sole foundation of the pursuer’s claim that she entered into a contract with the defenders, it follows that the pursuer’s averments as to the existence of a contract between her and the defenders are irrelevant.  There being no relevant averments setting out the existence of a contract between the parties, the pursuer’s claim insofar as it is grounded on an alleged breach of contract cannot succeed and must be dismissed.” 

In relation to the Article 8 case, on behalf of the pursuer it was submitted that human rights were at the centre of the inquiry’s work and that the termination power under section 12 of the 2005 Act, therefore, had to be exercised in a Convention compatible manner.  

It was argued that it was clear from section 12(7) that the exercise of the Minister’s power under section 12(3) to terminate an appointment was predicated on a fair investigation having been carried out and the provisional conclusion having been reached that proper grounds existed for the exercise of the power.  

In the present case, there had been no proper basis for the proposed decision because there were no grounds on which the pursuer could be regarded as being unfit to continue in office. 

Counsel contended that the defenders’ decision to invoke and pursue the section 12 process amounted to an attack on the independence of the Inquiry and on the independence of the pursuer as its Chair.  

However, the court held that the pursuer’s arguments on this branch of the case were “unsound”. 

Lord Pentland states: “In my opinion, the pursuer’s pleadings fail to set out a relevant case based on an infringement of her rights under Article 8 of the Convention. I consider that the defenders’ decision to invoke and pursue the procedure under section 12 of the 2005 Act, which might or might not lead to termination of her appointment, did not engage the pursuer’s Article 8 rights.  

“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. 

“In my opinion, section 12 of the 2005 Act embodies and reflects (the) values and principles (set out in the case law).  Applying the principles to the circumstances of the present case, 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.”   

Another difficulty for the pursuer stemmed 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 section 12(3). 

The opinion states: “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. 

“I conclude that the pursuer’s arguments on this branch of her case are unsound.  On the basis of her pleaded case, the pursuer’s rights under Article 8 of the Convention were not engaged by the defenders’ decision to invoke the section 12 procedure and to carry out an investigation under the 2005 Act.  It follows that the pursuer has advanced no relevant case under Article 8.” 

The full opinion can be accessed via the Scottish Courts and Tribunals Service website.

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