SUSAN O'BRIEN QC AGAINST THE SCOTTISH MINISTERS
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 96
A341/16
OPINION OF LORD PENTLAND
In the cause
SUSAN O’BRIEN QC
Pursuer
against
THE SCOTTISH MINISTERS
Defenders
Pursuer: O’Neill QC; Balfour + Manson
Defenders: Mure QC; Scottish Government
5 July 2017
Introduction
[1] On 4 July 2016 the pursuer, a practising member of the Faculty of Advocates and a Queen’s Counsel, wrote to Mr John Swinney MSP, the Deputy First Minister and Cabinet Secretary for Education and Skills, advising that she had decided to resign as Chair of the Scottish Child Abuse Inquiry (“the Inquiry”) with immediate effect; the pursuer had been appointed with effect from 1 July 2015. In her letter of resignation, the pursuer set out her reasons for taking this step and the background to it. At the end of her letter 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.
[2] In the present action, the pursuer seeks an order from the court declaring that the defenders’ actions in invoking the procedure under section 12 of the Inquiries Act 2005 (“the 2005 Act”) 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 Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Section 12 of the 2005 Act prescribes the grounds and the procedure for terminating the appointment of a member, including the chairman, of an inquiry panel. 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 seeks damages in the sum of £500,000.
[3] The action came before me on the Procedure Roll for a debate on both parties’ preliminary pleas–in-law. This, of course, meant that I did not hear any evidence in the case; the hearing was, in accordance with normal practice at this stage of an action, confined to legal arguments based on the parties’ written pleadings and on the terms of certain documents, the authenticity of which was not in dispute. The defenders moved for the action to be dismissed on the basis that it disclosed no proper case in law. The pursuer, for her part, proposed that decree of declarator should be pronounced de plano and that the court should appoint the case to an evidential hearing for the purpose of assessing damages. Mr O’Neill QC, who appeared for the pursuer, submitted that there was no need for a factual inquiry into the legality or fairness of the defenders’ actions; he was content for the issues to be addressed on the basis of the pursuer’s pleadings and the documents.
The core facts
[4] On the basis of the parties’ pleadings and the terms of the agreed documents, the circumstances giving rise to the present action may be summarised as follows.
[5] By letter dated 28 May 2015, the then Cabinet Secretary for Education and Lifelong Learning in the Scottish Government, Ms Angela Constance MSP, wrote to the pursuer in inter alia following terms:
“I am delighted to confirm your appointment from 1 July 2015 as Chair to the Historical Child Abuse Inquiry (‘the Inquiry’). The Inquiry is to be held under the Inquiries Act 2005 (“the Act”) and is a Scottish Inquiry in terms of section 1(2)(b) and section 28 of the Act. This letter serves as the formal written instrument of your appointment as Chair to the Inquiry pursuant to section 4(1) of the Act.”
[6] Section 4(1) of the 2005 Act provides that each member of an inquiry panel is to be appointed by the Minister by an instrument in writing.
[7] The letter explained that the terms of reference of the Inquiry were provided in Annex A. The letter went on to say that, in accordance with section 5(4) of the 2005 Act, the pursuer had been consulted on the terms of reference. The letter stated that the Cabinet Secretary intended that the Inquiry should be undertaken by an inquiry panel in accordance with section 3(1)(b) of the 2005 Act. In due course, the Scottish Government appointed two other members of the inquiry panel: Professor Michael Lamb, Professor of Psychology at the University of Cambridge and Mr Glenn Houston, a senior social worker and chief executive of the regulation and quality improvement authority in Northern Ireland.
[8] The letter also stated that Ministers would pay such remuneration and expenses as were agreed as reasonable between the pursuer as Chair and Ministers as having been reasonably incurred by the Inquiry in meeting the terms of reference; these would be dealt with by separate schedule. The letter drew attention to the fact that the 2005 Act sets out various statutory powers which Scottish Ministers had in relation to the Inquiry; it explained that the pursuer as Chairman also had statutory powers and duties under the 2005 Act. Reference was also made to the Inquiries (Scotland) Rules 2007 (SSI 2007/560) (“the 2007 rules”).
[9] At the end of the letter the Cabinet Secretary said that she had copied it to the convener of the Education and Culture Committee and that a copy would be lodged with the Scottish Parliament Information Centre.
[10] The terms of reference in Annex A provided that the overall aim and purpose of the Inquiry was to raise public awareness of the abuse of children in care, particularly during the period covered by the Inquiry – that was stated to be the period within the living memory of any person who suffered abuse up to such date as the Chair might determine (but not beyond 17 December 2014). The terms of reference explained that the Inquiry was to provide an opportunity for public acknowledgement of the suffering of children abused whilst in care. To achieve this, the Inquiry was required, amongst other things, to investigate the nature and extent of abuse of children in care, to consider the extent to which institutions failed in their duty of care to children, to create a national public record on abuse of children in care, and to consider whether any changes in practice, policy or legislation were necessary in order to protect children in care from abuse in the future.
[11] The separate schedule setting out the terms of the pursuer’s appointment referred to her as holding the office of Chair of the Inquiry. Paragraph 1 of the schedule stated that the provisions of the 2005 Act applied in relation to the office of Chair as specified in the pursuer’s instrument of appointment dated 27 May 2015 (this was an error; the letter was dated 28 May 2015). Paragraph 2 of the schedule provided as follows:
“You are not a servant or agent of the Crown or a civil servant, and do not have any status, immunity or privilege of the Crown. These terms are not to be construed as constituting a contract of employment or service or a contract for services as between you and the Scottish Ministers or the Crown.”
[12] The schedule continued by setting out the number of days (210) that the pursuer was expected to devote annually to the performance of her functions. It provided for her remuneration by way a daily fee, up to a maximum total fee in each financial year. The schedule also stated that the pursuer was entitled to reimbursement of any expenses necessarily incurred and that she would not receive sick pay, death in service or any other benefit or remuneration which was not described in the schedule. It provided that the pursuer was free to undertake other appropriate work and activities (including service as a member of the Investigatory Powers Tribunal) on the days on which she did not undertake the functions of Inquiry Chair and did not receive a fee under her appointment.
[13] The schedule was revised by agreement between the pursuer and the defenders in December 2015; none of the revisions is material for the purposes of the present action.
[14] In accordance with section 6(2) of the 2005 Act, the Cabinet Secretary made a statement in the Scottish Parliament on 28 May 2015 in which she announced the establishment of the Inquiry and the appointment of the pursuer as its Chair.
[15] On the same date the pursuer wrote to the Cabinet Secretary in the following terms:
“I refer to the Instrument of Appointment, dated 28 May 2015, and confirm that I am honoured to accept appointment as the Chair of this Inquiry, on the basis of the Terms of Reference attached, and the other matters enumerated the (sic) Schedule.”
[16] The Inquiry began work in or about October 2015.
[17] 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, Ms Julie-Anne Jamieson. Since Dr Fyvie’s letter is important for the purposes of the present action, I shall set out its terms in full:
“It is with regret that I am writing to you to confirm that the Rivers Centre will not be submitting a tender for the Inquiry’s longer-term support services. You will be aware that we are currently delivering a three-month interim support service and that our remit has been the provision of professional support to the Inquiry team in its engagement with survivors of child abuse. Specifically, we have been asked to advise on matters such as the language the Inquiry uses, its communication strategy, protocols and processes, and we have been working closely with the Inquiry team for the past few weeks in this respect. Our efforts to deliver a professional service are being significantly compromised, however, and I have now reached the point where I wish to record my concerns in writing.
My concerns lie almost entirely with the Chair of the Inquiry, Ms Susan O’Brien, QC, and with the attitudes and beliefs she appears to hold with regard to survivors of child abuse. You may remember our first training session on 22nd February 2016, when Ms O’Brien appeared to be attempting to lighten the mood by referring to a friend who had described sexual abuse at boarding school as the best thing that had ever happened to him. The same day, during a separate discussion on the impact of in-care abuse, Ms O’Brien queried the evidence presented at the trial of a teacher found guilty of sexual offences, and suggested that the teacher in question had simply had a hole in his trousers. Whilst I accept that these remarks may have been well-intentioned, I believe they are totally unacceptable and indicate a belief system that is incompatible with the post of Chair of a child abuse Inquiry.
I also wish to comment on our attempts to offer professional advice to the Inquiry regarding its strategies and processes. From the outset we have made suggestions about terminology, procedures and protocols, based on our experience at the Rivers Centre of working with survivors of child abuse. However it appears that decisions on these matters are being made unilaterally by the Chair, with no regard to the advice of professional colleagues or external consultants. I therefore consider our role as expert advisers to be redundant and I can see no reason to continue this beyond our current short-term contract.
You will appreciate that I have given this matter a great deal of thought, as I have utmost (sic) respect for the Inquiry team as a whole and it goes against the grain to walk away from such an exceptional group of professionals. However, my primary responsibility is to the survivors of child abuse and I trust you will view this letter as a genuine attempt to act in the interests of the people we serve.”
[18] On 10 May 2016 Mr Colin MacAulay QC, Counsel to the Inquiry, replied to Dr Fyvie’s letter in the following terms:
“I refer to your letter dated 9 May 2016 to the Inquiry.
I have been asked, as Counsel to the Inquiry, to respond to that letter on behalf of the Chair and the other panel members.
The Chair with the full support of the other panel members, totally rejects the characterisation by you – in the second paragraph of your letter – of the Chair as a person whose attitudes, values, and beliefs are incompatible with the post of Chair of a public inquiry into child abuse.
It is not accepted that anything said by the Chair at the first training session is a proper basis for the opinion which you have expressed.
(a) The remark about her friend, which was factually true, was indeed intended to lighten the mood, and followed on from earlier discussion about coping strategies.
(b) The discussion about a teacher with a hole in his trousers arose because newspaper reports said that the Sheriff had criticised the Crown because the hole was the only evidence of ‘abuse’. The teacher was NOT convicted of sexual offences.
The conclusions you draw from these remarks are totally unsustainable and rejected in their entirety by Ms O’Brien.
Furthermore, there appears to have been a serious misunderstanding of your own role as a professional advisor in the penultimate paragraph of your letter. For the record, decisions about the Inquiry’s Protocols or procedures were taken after extensive discussion with the two panel members and a total of five lawyers, in addition to the Chair. Every word was approved and signed off and agreed by the two panel members and myself, as Leading Senior Counsel to the Inquiry.
The Chair, who is a lawyer with a distinguished professional career – during which she has, among other things, strongly represented the interests of persons who have sought compensation in the civil courts in respect of childhood abuse – regards your statements and expressions of opinion as defamatory and actionable. Unless you immediately withdraw them, she will consider raising legal proceedings in respect of them.
Please confirm that the statements will be withdrawn immediately, including from the outside person to whom your letter has been copied. The Chair views that action as an absolute priority. Please issue the Chair with an appropriate apology as soon as possible.”
[19] Following this exchange of correspondence, a meeting took place on 16 May 2016 between the pursuer and Mr Paul Johnston, Director General of the Scottish Government’s Directorate for Learning and Justice. Whilst the pleadings do not contain an admitted account of what transpired at this meeting, it is reasonably clear that there was some discussion of the possibility that the pursuer might resign as Chair in the light of Dr Fyvie’s letter. It is also clear that the pursuer refused to do so.
[20] The next development was that on 20 May 2016 Mr Craig French, Deputy Director of the Legal Services Directorate of the Scottish Government wrote to the pursuer. This letter is also of importance for the purposes of the present action and I shall, therefore, set it out in full. It read as follows:
“Notice of Ministers’ proposed decision to exercise their power to terminate your appointment as Chair and as a Member of the Scottish Child Abuse Inquiry
In terms of Section 12 of the Inquiries Act 2005, the Scottish Ministers propose to exercise their power by notice to terminate your appointment as Chair and as a Member of the Scottish Child Abuse Inquiry.
The circumstances giving rise to Ministers (sic) proposed use of their powers are as follows:-
- Ministers have seen Dr Clair Fyvie’s letter dated 9 May 2016, addressed to Julie-Anne Jamieson, Secretary to the Inquiry.They have also seen the letter dated 10 May 2016 addressed to Dr Fyvie by Senior Counsel to the Inquiry, Colin J MacAulay QC.
- Ministers infer from Mr MacAulay’s letter that Dr Fyvie's account of your remarks on 22 February 2016 is essentially correct.Ministers are of the clear opinion that if it became publicly known that you had made those remarks, then your position would be untenable.
- They have noted Dr Fyvie’s opinion that the remarks ‘are totally unacceptable and indicate a belief system that is incompatible with the post of Chair of a child abuse inquiry’.Ministers further note that you are considering raising legal proceedings in respect of Dr Fyvie’s expression of her opinion.
- Ministers have noted with concern that the Rivers Centre is no longer willing to participate as expert advisers providing professional support to the inquiry, beyond the current short-term contract.They have noted the reasons given by Dr Fyvie for this withdrawal.
- Ministers are conscious of their obligations to those who suffered abuse whilst in care in Scotland, and of the need for the inquiry to fulfil its terms of reference.They recall the terms of the Cabinet Secretary for Education and Lifelong Learning’s letter dated 28 May 2015 appointing you.
In light of these circumstances, Ministers propose to terminate your appointment on the ground that you are unable to carry out the duties of Chair and as a Member of the inquiry panel, by reason of the following:
(i) the remarks made by you on 22 February 2016, and their present and potential consequences, which place in substantial doubt the fulfilment of the Inquiry’s terms of reference while you remain in post;
(ii) your conduct of the Inquiry, which has caused Dr Fyvie of the Rivers Centre for Traumatic Stress, expert advisers providing professional support to the inquiry team, to regard the Centre’s current role as redundant and to withdraw from future work with the Inquiry; and
(iii) the fact that you can now no longer command the confidence of Ministers, and may at some unforeseen point in the future lose the confidence of those for whose benefit the inquiry was established.
Ministers will be fair to you in deciding whether to exercise their power under Section 12 of the Act, both in terms of the substance of the decision and in relation to the process to be followed. The following process will apply:-
(i) By no later than 5 p.m. on Friday 3 June 2016 you may make representations in writing to Ministers on the matters raised in this letter.
(ii) By no later than 4 p.m. on Tuesday 24 May 2016 you should advise Ministers whether you request that they consult the other members of the inquiry panel in terms of section 12(7)(b) of the Act.
(iii) If you do request that Ministers consult the other members of the inquiry panel, then Ministers will endeavour to do so within 24 hours of such a request, by sending to them a copy of this letter, along with copies of the documents referred to in this letter; and will invite representations in writing from those other members by no later than 5 p.m. on Friday 3 June 2016.
(iv) If the other members of the inquiry panel make any representations to Ministers, in response to their being consulted by Ministers under section 12(7)(b), those representations will be made available to you, and you will be given the opportunity to make any further representations to Ministers thereon.
(v) At the end of the process set out above (with or without an extension of time to deal with other members’ representations), Ministers would presently anticipate taking a final decision (and, if so advised, serve a written notice terminating your appointment) within a further 7 days.
I look forward to hearing from you or from your solicitor (to whom this letter is copied).”
[21] Section 12 of the 2005 Act provides as follows:
“(1) Subject to the following provisions of this section, a member of an inquiry panel remains a member until the inquiry comes to an end (or until his death if he dies before then).
(2) A member of an inquiry panel may at any time resign his appointment by notice to the Minister.
(3) The Minister may at any time by notice terminate the appointment of a member of an inquiry panel—
(a) on the ground that, by reason of physical or mental illness or for any other reason, the member is unable to carry out the duties of a member of the inquiry panel;
(b) on the ground that the member has failed to comply with any duty imposed on him by this Act;
(c) on the ground that the member has—
(i) a direct interest in the matters to which the inquiry relates, or
(ii) a close association with an interested party,
such that his membership of the inquiry panel could reasonably be regarded as affecting its impartiality;
(d) on the ground that the member has, since his appointment, been guilty of any misconduct that makes him unsuited to membership of the inquiry panel.
(4) In determining whether subsection (3)(a) applies in a case where the inability to carry out the duties is likely to be temporary, the Minister may have regard to the likely duration of the inquiry.
(5) The Minister may not terminate a member's appointment under subsection (3)(c) if the Minister was aware of the interest or association in question when appointing him.
(6) Before exercising his powers under subsection (3) in relation to a member other than the chairman, the Minister must consult the chairman.
(7) Before exercising his powers under subsection (3) in relation to any member of the inquiry panel, the Minister must—
(a) inform the member of the proposed decision and of the reasons for it, and take into account any representations made by the member in response, and
(b) if the member so requests, consult the other members of the inquiry panel (to the extent that no obligation to consult them arises under subsection (6)).”
[22] Following receipt of Mr French’s letter, the pursuer, through her solicitors (Messrs Balfour & Manson LLP), requested that Ministers consult the other two members of the Inquiry panel. Both Professor Lamb and Mr Houston made written representations to the defenders. Professor Lamb said that it was his belief that the pursuer should remain in office. Mr Houston stated that, in his view, there would be a significant loss of public trust and confidence in the integrity of the Inquiry if the pursuer was removed from office. At their request, Professor Lamb and Mr Houston had a meeting with the Deputy First Minister, Mr John Swinney MSP, who had by then assumed responsibility for the Inquiry, on 31 May 2016. In the aftermath of that meeting, the defenders sought comments from Professor Lamb and Mr Houston on a note of the meeting; thereafter the defenders issued the final note of the meeting to the pursuer.
[23] On 2 and 17 June 2016 Balfour & Manson wrote in detail to Mr French setting out the pursuer’s 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.
[24] In response to a request from the defenders, Dr Fyvie wrote to them on 17 and 21 June 2016 explaining her concerns in greater detail.
[25] On 22 and 28 June 2016 the pursuer and her legal representatives attended meetings with Mr Swinney and his officials; representations were made on the pursuer’s behalf.
[26] On 28 June 2016 Professor Lamb resigned as a member of the Inquiry panel.
[27] As I have explained, by letter to the Deputy First Minister dated 4 July 2016 the pursuer resigned as Chair of the Inquiry with immediate effect. She claimed that Scottish Government officials had sought to micro-manage and control the Inquiry and that she had resisted this. She maintained that her position as independent Chair had been actively undermined by some Scottish Government officials over the past months. She stated that one official had threatened to use the ‘nuclear option’, which the Inquiry panel understood to mean the pursuer’s removal from office, during a dispute over statement taking. The pursuer challenged the complaints made against her by Dr Fyvie. She concluded by stating that she could not reassure the public that the Inquiry would be conducted independently of Government.
The relevance of the case based on breach of contract
[28] As I have explained, the pursuer seeks damages for an alleged material breach of contract. The first question to consider is, therefore, whether her averments disclose a relevant case pointing to the existence of a contract between her and the defenders.
[29] The pursuer avers in Article 3 of condescendence that the letter of 28 May 2015 offered her the post of Chair of the Inquiry. She says that she accepted this offer by her letter also dated 28 May 2015. The pursuer’s averments state that the offer and the acceptance 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. From these averments it is clear that the pursuer claims that the contract between her and the defenders was constituted by the offer and acceptance comprised in the exchange of letters between the parties on 28 May 2015. It is the contract formed by these two documents that the defenders are said to have breached. I note that the pursuer does not aver that she entered into a contract of employment or a contract for the provision of services with the defenders. Her contractual case is based (and only based) on the proposition that there was a contract founded on an offer and acceptance in the form of the two documents to which she refers.
[30] In my opinion, all the pursuer’s averments relating to the formation of a contract between her and the defenders are irrelevant. 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. There is nothing in the letter suggesting that the pursuer was merely being offered an appointment. The letter was not just the first stage in a process that might or might not lead to the conclusion of a contract between the parties depending on whether the pursuer decided to accept, reject or seek to modify the terms it contained; it was instead the end of the appointment process, leaving nothing further to be done in order to complete the process of appointing the pursuer as Chair of the Inquiry.
[31] The point can be tested in this way. Suppose that the pursuer had never sent her letter of 28 May 2015. What would the position then have been? Her appointment would nonetheless still have been announced in the Scottish Parliament and her appointment would have been confirmed by the Cabinet Secretary in the instrument of appointment. Yet on the basis of the pursuer’s analysis her appointment would have been incomplete because she had not accepted it. This does not make sense.
[32] In my opinion, the correct analysis of the position is that the pursuer was appointed to hold a statutory office under and in terms of the 2005 Act. She was appointed to that office by the Minister, in accordance with section 4(1) of the 2005 Act, by an instrument of appointment; the letter from the Cabinet Secretary dated 28 May 2015 was, as it expressly bore to be, the instrument of appointment.
[33] The pursuer relied on Percy v Board of National Mission of the Church of Scotland 2006 SC (HL) 1 in which the House of Lords (Lord Hoffman dissenting) held that the appellant had entered into a contract with the respondents to provide services as an associate Minister to a parish of the Church of Scotland in Angus. Lord Nicholls observed that the holding of an office and the existence of a contract to provide services were not necessarily mutually exclusive (paragraph 18). The facts of that case were very different from those of the present one, however. A vacancy for an associate Minister had been publicly advertised and the appellant applied for it. In response to her application, the respondents’ general secretary wrote to the appellant inviting her to accept the appointment; he enclosed terms and conditions of appointment. Four days later the appellant wrote to the general secretary formally accepting appointment. In contrast to the present case there was, therefore, an offer containing an invitation followed by an acceptance of that offer and invitation. In the present case there was no offer, no invitation and hence nothing capable of being accepted.
[34] The pursuer drew my attention to certain other authorities, but none of them was in point. Ministry of Justice v O’Brien [2013] ICR 499 concerned whether a barrister holding office as a part-time recorder qualified as a ‘worker’ for the purposes of the Part‑Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and was entitled to a pension. The case had nothing to do with the construction of the documents surrounding and constituting the claimant’s appointment.
[35] Perceval-Price v Department of Economic Development [2000] IRLR 380, CA (NI) was concerned with the proper construction of the term ‘worker’ under EU law and with the position and working practices of members of the judiciary, namely the holders of tribunal posts; it did not relate to the status of those appointed to chair statutory inquiries.
[36] The present case has more in common with Gilham v Ministry of Justice [2017] ICR 404 in which Simler J, sitting as President of the Employment Appeal Tribunal, held that a district judge was an office-holder only and did not have a contractual relationship with the Ministry of Justice. The legal relationship between the claimant and the respondent was fully explained by and referable to the claimant’s appointment as an office‑holder in accordance with the relevant statutory and constitutional provisions.
[37] In my opinion, the letter of 28 May 2015 shows that the pursuer was appointed to the office of Chair of the Inquiry under and in terms of the 2005 Act and the 2007 rules. The pursuer’s functions as Chair were provided for by the 2005 Act and the 2007 rules. She held a statutory office by virtue of her instrument of appointment.
[38] It is true that the parties entered into an agreement about the level of the pursuer’s remuneration and the amount of time she was expected to give to the performance of her statutory duties. As I have explained, those and certain other practical issues were set out in a separate schedule to the instrument of appointment. In this connection, it is important to recall that paragraph 2 of the schedule expressly provided that the pursuer was not a servant or agent of the Crown and that the terms were not to be construed as constituting a contract of employment or service or a contract for services as between the pursuer and the Scottish Ministers or the Crown. In my opinion, the provisions set out in the schedule do not govern what was comprised in the pursuer’s statutory functions as Chair of the Inquiry. The schedule was not concerned with the content or the manner of performance of the pursuers’ functions as Chair or with the respective roles of the Scottish Ministers and the Chair during the currency of the Inquiry.
[39] At one point in his oral submissions, Mr O’Neill suggested that the pursuer was effectively in an employment relationship with the defenders. That is not the pursuer’s pleaded case, however.
[40] 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.
[41] I would add that, in my view, the pursuer’s averments as to the existence and breach of a number of terms that were allegedly implied into the supposed contract between the parties are also irrelevant. The averments as to the content of the implied terms are to be found in Articles 22 and 23 of condescendence. The implied terms are very broadly stated. For example, in Article 22 the pursuer avers that it was an implied condition that in their dealings with her the defenders would act in accordance with the standards of natural justice and the requirements of procedural fairness; in Article 23 it is said to have been an implied term that the defenders would not conduct themselves in a manner calculated to destroy or seriously to damage the relationship of confidence and trust between the parties; and in the same article it is averred that it was an implied term that the defenders would exercise their duties under the 2005 Act lawfully and in accordance with the 2005 Act. The pursuer makes no attempt to explain the basis upon which any of these terms was implied into the parties’ contract; they are simply asserted, without further elaboration, to have been implied terms. Some of them appear to have been borrowed or loosely adapted from the sphere of employment law, but the pursuer does not claim to have had a contract of employment with the defenders. Insofar as the alleged implied terms reflect or seek to replicate in some way the duties of the defenders to comply with the 2005 Act, it is unclear why the terms are necessary. In my opinion, the defenders were obliged to act lawfully and fairly, not because of any implied contractual terms, but because they were exercising powers conferred on them by the 2005 Act.
[42] In conclusion on the contractual branch of the case, I find that there are no relevant averments concerning the existence, scope and content of any contract between the parties relating to the performance of their respective functions under the 2005 Act. The pursuer’s case insofar as based on breach of contract is misconceived.
The relevance of the case based on Article 8 of the Convention
Summary of arguments for the pursuer
[43] With a view to setting in context my reasoning and decision on this branch of the case, it will assist if I first summarise the various lines of argument advanced on behalf of the pursuer. I begin by pointing out that in his oral submissions, Mr O’Neill made clear that, whilst the pursuer’s pleadings and note of argument placed reliance on Article 6 of the Convention and referred to Article 3, he was now relying only on an infringement of Article 8.
[44] Mr O’Neill submitted that human rights were at the centre of the Inquiry’s work (as the pursuer’s instrument of appointment made clear) and that the Chair of the Inquiry had to be independent in practical terms (El-Masri v Former Yugoslav Republic of Macedonia (2013 57 EHRR 25 783). The proper conduct of the Inquiry fell within the ambit of the State’s procedural obligations under Article 3. It was essential that the Inquiry was (and was seen to be) independent of government, especially since government might be implicated in the events and issues that would be the subject of investigation. In Mr O’Neill’s submission, the termination power under section 12 of the 2005 Act, therefore, had to be exercised in a Convention compatible manner. The pursuer’s tenure in office was not at the defenders’ pleasure. Security of tenure was necessary to allow her to fulfil her duties impartially and without fear of the consequences. The pursuer was not physically, mentally or otherwise incapacitated for any reason from carrying out her duties. In the circumstances, there was no proper basis upon which section 12(3)(a) could be invoked. Mr O’Neill drew to my attention that when that provision had been considered during its legislative passage through the House of Lords, the Minister, Baroness Ashton of Upholland, had stated that the words ‘any other reason’ were not intended to suggest anything other than reasons of physical or mental illness; the Minister had added that such phrases are used to capture circumstances as effectively as possible. She undertook to review the wording (Lords Hansard, 19 January 2005, col. GC256).
[45] Mr O’Neill 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. Before the Minister formulated a proposed decision, the statutory scheme envisaged that a fair investigation of the facts had already been carried out and that all the relevant facts had been fairly and properly established. 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.
[46] Mr O’Neill 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. She was entitled to the same degree of independence as a full-time member of the judiciary. Reference was made to Mackay and Esslemont v Lord Advocate 1937 SC 860 – a case concerning the status of members of the Land Court; and to MacLean v City of Glasgow Council 1999 SLT 11 – a case involving the tenure of a stipendiary magistrate. I should say at this point that I did not find either of these cases helpful in the context of considering whether the pursuer’s status was equivalent to that of a judge; neither case related to the position of a chairman of an inquiry established under the 2005 Act.
[47] In the course of his arguments on this branch of the case, Mr O’Neill referred to the terms of an email dated 7 January 2016 from the Inquiry’s solicitor, Ms Andrea Summers, to the pursuer; this contained an account of a meeting on that date between Mr Donald Henderson, deputy director of the Inquiry’s sponsorship team in the Scottish Government, and the Inquiry’s secretary and Ms Summers. The email is referred to in the pursuer’s pleadings in the context of averments explaining that there had been a dispute between the Inquiry Panel and the defenders over whether witness statements should be taken by agency workers or members of the Bar. According to the email, various issues were discussed, including responses to freedom of information requests, questions concerning compensation for victims and the possibility of meetings between the pursuer and the Cabinet Secretary (at the time, Ms Constance MSP). At one point the email refers to a somewhat unclear reference by Mr Henderson to the ‘nuclear option’. Ms Summers said in the email that she formed the impression that this could relate to the pursuer’s position as Chair of the Inquiry, but she could not be certain.
[48] Mr O’Neill submitted that the contents of the email were important background to the defenders’ decision to invoke the section 12 procedure. It showed, he contended, that the defenders were raising issues about the pursuer’s conduct of the Inquiry; they were suggesting (through Mr Henderson) that they had lost confidence in the pursuer as Chair of the Inquiry. This could be seen from what Mr O’Neill characterised as veiled references to removing the pursuer from her position as Chair.
[49] Mr O’Neill went on to argue that section 12 of the 2005 Act, when read in a Convention compatible way, required the defenders to carry out what he described as a preliminary investigation into Dr Fyvie’s concerns before they invoked the procedure allowed for in the provision. He argued that there was no legitimate basis on which the defenders were entitled to assert in the letter of 20 May 2016 that the pursuer was unable to continue to carry out the duties of Chair and as a member of the inquiry panel. There was, as Mr O’Neill put it, no colourable ground of inability in terms of section 12(3)(a) of the 2005 Act. It was clear from the terms of the letter of 20 May 2016 that the defenders had approached matters with closed minds. By their conduct they had, or so Mr O’Neill contended, effectively converted the Inquiry into one in which the pursuer held office at their pleasure. The whole procedure had been unfair, contrary to natural justice and in breach of the defenders’ duty to respect the pursuer’s independence; it was also in breach of the duty of mutual trust and confidence inherent in the pursuer’s appointment. Mr O’Neill concluded by submitting that the pursuer had been deprived of the procedural protections afforded to her under Article 8.
Analysis of the Article 8 case
[50] Under Article 8 of the Convention, the notion of ‘private life’ encompasses the right for an individual to form and develop relationships with other persons, including relationships of a personal or business character (C v Belgium (2001) 32 EHRR 2 at [55]). Article 8 thus protects the right to personal development and the right to establish and develop relationships with other human beings and the outside world; it does 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. Restrictions imposed on access to a profession have been found to affect private life (Sidabras v Lithuania (55480/00 and 59330/00) 27 July 2004 at [47]). Likewise, dismissal from office has been found to interfere with the right to respect for private life (Volkov v Ukraine (2013) 57 EHRR 1 at [165]; Erményi v Hungary [2016] ECHR 22254/14 at [30]).
[51] 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.
[52] The essence of Mr O’Neill’s submissions and of the pursuer’s pleaded case was that the defenders did not have a proper or a sufficient basis for invoking the procedure provided for in section 12. I disagree. 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, the defenders were entitled to take that step because it was an appropriate, proportionate and fair response to the issues of serious concern which Dr Fyvie had raised in her letter of 9 May 2016. Mr O’Neill sought to suggest that the points raised by Dr Fyvie were insignificant, that they were lacking in substance, and were manifestly misconceived. In my view, these criticisms are unjustified. Dr Fyvie is a consultant clinical psychologist with substantial experience in the sphere of child abuse; she had been closely involved in the Inquiry’s work. In view of her expertise and involvement, her representations were worthy of being treated seriously and with respect. Her organisation had been providing professional support to the Inquiry team; it had been envisaged that the Rivers Centre would submit a tender for the Inquiry’s longer-term support services. I consider that it would have been irresponsible for the defenders not to have treated Dr Fyvie’s concerns, which she set out in detailed and measured terms, seriously. She cited two specific remarks made by the pursuer. She also explained that the Rivers Centre would be withdrawing from further involvement in the Inquiry and provided reasons why she had (reluctantly) come to that decision.
[53] In my opinion, the defenders were entitled to take the view that the remarks which Dr Fyvie drew to their attention had the potential to undermine confidence in the pursuer’s leadership of the Inquiry, to cause offence and distress to survivors of child abuse and to arouse difficulty and controversy among survivors and among the general public, were they to enter the public domain. There were, in my opinion, sufficient grounds for the defenders to form the provisional opinion that the remarks were misjudged and showed a lack of insight and sensitivity on the part of the pursuer, having regard to her particularly sensitive rôle as Chair of a public inquiry into historical child abuse. I am satisfied that the contents of the remarks (and the other points made by Dr Fyvie) were such as to raise, on a prima facie basis, legitimate questions concerning the pursuer’s ability to command the confidence and trust of survivors of child abuse, the general public, and the providers of services to the Inquiry, such as the Rivers Centre. In my judgment, it was reasonable for the defenders to carry out an investigation into the concerns raised by Dr Fyvie. A public authority has a duty, sometimes referred to as the Tameside duty (since the principle derives from Lord Diplock’s speech in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065) to carry out a sufficient inquiry prior to making a decision whether to exercise powers conferred upon it by statute (R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 2 All ER 261 per Hallet LJ at [99]). The prescribed way for the defenders to carry out an investigation in the present case was by means of the section 12 process. It sets out a mechanism and procedure designed to allow the defenders to terminate appointments on certain specified grounds. The procedure contains important safeguards to ensure that the power of termination is exercised fairly and in accordance with natural justice. This can be seen from sub-section (7) which requires the Minister, before exercising the power of termination, to inform the member of the proposed decision, to take account of any representations made in response, and where requested to consult the other members of the inquiry panel.
[54] In this context it is worth recalling what Lord Mustill said in his well-known observations in R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531 at 560 about the nature and extent of the duty of a pubic authority to act fairly in exercising a statutory power:
“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
In my opinion, section 12 of the 2005 Act embodies and reflects these values and principles. 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. In Article 27 of condescendence the pursuer avers that in invoking, initiating, and continuing with the section 12 proceedings in the way they did, the defenders failed to afford the pursuer the procedural protections required under inter alia Article 8 of the Convention. It is notable that the pursuer does not, however, set out any details of the procedural protections allegedly denied to her. In fact, there were, in my opinion, sufficient procedural protections provided under and in terms of the scheme established by section 12 and operated by the defenders in the present case.
[55] As I have said, Mr O’Neill’s case was predicated on the proposition that the defenders had no basis for undertaking the section 12 process, that they had closed their minds against the pursuer and had no intention of carrying out a fair investigation. In my opinion, this submission goes too far. It depends on a partial and unrealistic reading of Mr French’s letter of 20 May 2016. The letter made clear that the defenders undertook to be fair to the pursuer in deciding whether to exercise their power under section 12 of the 2005 Act to terminate her appointment and that such fairness would extend both to procedural and to substantive questions. I see no reason why this assurance should be ignored or glossed over, as Mr O’Neill’s submissions sought to do. I have already pointed out that the pursuer was to be given a full opportunity to make representations to the defenders; the other members of the Inquiry Panel would be consulted if the pursuer wished that to be done; and any representations made by the other members would be made available to the pursuer, who would be given the opportunity to make any further representations thereon. Moreover, Mr French’s letter was careful to go no further than to state that the defenders proposed to exercise their section 12 power; it did not say (nor can it reasonably be read as implying) that they had already decided to terminate the pursuer’s appointment or had secretly resolved that they would do so in due course. It seems to me that the letter made clear that the defenders had come to no more than a provisional view on the question of possible termination. All of this was in accordance with the statutory procedure laid down in section 12 of the 2005 Act.
[56] Read fairly and as a whole, the letter served to express the defenders’ serious concerns based on the contents of Dr Fyvie’s complaints. It did not endorse or uphold those complaints. Thus, the letter expressly stated that the defenders had noted Dr Fyvie’s concerns and her opinion. Mr O’Neill laid emphasis on the way in which the letter explained the reasons for the defenders’ proposed decision; these are sub-paragraphs (i), (ii) and (iii) on the second page of the letter. In my opinion, those parts of the letter fall to be read as explanations for the proposed decision and not as settled conclusions on the matters to which they refer. In the light of the other parts of the letter, which make it entirely clear that it sets out no more than a proposed decision, the reasons cannot sensibly be read as if they were reflections of the defenders’ concluded views. In my opinion, the contents of the letter were in line with the procedure laid down by section 12. It is clear from the terms of the letter that the defenders had not reached any concluded view on whether to terminate the pursuer’s appointment. The letter set out in detail the procedure which the defenders proposed to follow. It seems to me that it was a fair procedure, involving the opportunity for the pursuer to make representations, and consultation with the other members of the inquiry panel if the pursuer wished that to take place. The defenders’ actions in the aftermath of the letter showed that this procedure was being faithfully and responsibly followed through. The other members of the Inquiry panel were duly consulted; the defenders received and considered their replies. Following a request by the pursuer on 26 May 2016, the defenders arranged a meeting between the three panel members and the Deputy First Minister. The meeting took place on 31 May 2016. The pursuer, acting on the basis of legal advice, elected not to attend. Following the meeting, the defenders requested comments from Professor Lamb and Mr Houston on the note of the meeting and thereafter issued the final note to the pursuer for her comments. In the light of the representations received from the pursuer, the defenders sought further information from Dr Fyvie, who responded on 17 and 21 June 2016; the defenders invited the pursuer to make further representations in response. At the pursuer’s request, the Deputy First Minister met her on two occasions, on 22 and 28 June 2016. In my opinion, this sequence of events shows that the defenders were in the process of carrying out a fair investigation into whether to terminate the pursuer’s appointment; they were gathering information to allow them to take a decision on that question; and they were following a fair and open-minded procedure designed to allow them to take a properly informed decision. This all goes to show that the inferences of bias and unfairness which Mr O’Neill sought to draw are not justified by the facts.
[57] 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 section 12(3). Mr O’Neill’s submissions invited the court to hold that it was too late for the pursuer to be treated fairly by the time the letter of 20 May 2016 was sent and that the defenders had no genuine intention of doing so. As I have already said, the facts do not support that view. I do not consider that there is any basis for drawing an inference that the assurance of fairness was untrue. The pursuer avers (in Article 14 of condescendence on page 22 B-C) that the defenders solicited Dr Fyvie to put her apparent concerns into writing. If by that the pursuer means to imply that the defenders acted with malice by encouraging Dr Fyvie to complain about her, I can find nothing in the pursuer’s pleadings or the documents to support such an allegation. With regard to the email containing reference to the ‘nuclear option’, there are no averments to connect that with the defenders’ decision to invoke the section 12 procedure. As to Mr O’Neill’s attempt to rely on the notion of constructive dismissal, I do not consider that concept, developed in the quite different context of employment law, to have any application to the facts of the present case. 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.
[58] Mr O’Neill sought to argue that the defenders had misconstrued section 12 because, properly read, it required them to have carried out a fair investigation of the facts and to have reached factual conclusions before they notified the pursuer of their proposed decision. In my opinion, that is not the correct reading of subsection (7). Sub‑paragraph (a) of the provision requires the Minister to have reached a proposed decision; he or she must then inform the member of the proposed decision and the reasons for it. It is clear from the terms of the letter of 20 May 2016 that the defenders had reached a proposed decision to terminate the pursuer’s appointment; as required by section 12(7) the letter informed the pursuer of that proposed decision and of the reasons for it. The letter then went on to say that before exercising the power to terminate under subsection (3) the pursuer would have the opportunity to make representations, which the defenders would consider before deciding whether to exercise the power of termination. All of this was, in my opinion, entirely in accordance with the statutory scheme.
[59] I note also that the only power conferred on the defenders by section 12 is the power to terminate an appointment. There is no power to carry out a preliminary investigation.
[60] Mr O’Neill submitted that there was no basis for the defenders to reach the provisional view that the pursuer was unable to continue to carry out the duties of Chair of the Inquiry. I disagree. It has been authoritatively held that ‘inability’ should not be given an unrealistically narrow meaning in the context of procedures for removing judges from office; it should be given the wide meaning that the word naturally bears (Stewart v Secretary of State for Scotland 1998 SC (HL) 81; Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43, Lord Phillips at paragraphs 204 and 205). Even assuming in the pursuer’s favour that her status should be regarded as equivalent to that of a judge, there was ample material justifying the defenders’ provisional view that she was unable to continue in office: her unacceptable and insensitive remarks; their potential to undermine the Inquiry and the trust and confidence of the survivors of child abuse if they became public; Dr Fyvie’s expression of her serious concerns about the pursuer’s attitudes and beliefs; and the withdrawal of the Rivers Centre from further involvement in the work of the Inquiry.
[61] I should add that I do not attach any weight to the statements made by the Minister during the parliamentary passage of the legislation. She said that the government would review the inclusion of the words ‘or any other reason’. The Act, as passed, included those words.
[62] In Articles 29 to 34 of condescendence the pursuer seeks to equate her position as chairman of the Inquiry to that of a judge. In my opinion, the analogy is misconceived. In contrast to members of the judiciary, an Inquiry chair is appointed under statute for the purpose of a specific inquiry according to terms of reference set by the Minister, to whom the Chair must, in due course, submit her report. In view of the issues drawn to their attention by Dr Fyvie, the defenders were justified, in the interests of maintaining trust and confidence in the Inquiry, in deciding to investigate the pursuer’s continued fitness to hold office. I accept that the Inquiry had to be conducted independently of government, but I do not agree that this independence was endangered or undermined by the defenders’ decision to invoke the section 12 procedure.
[63] The pursuer avers in Article 25 of condescendence that her right to earn her living through the pursuit of her chosen profession is an aspect of her private life. No doubt that is correct as a proposition of law and as a matter of legal theory. But like much of her pleaded case, the pursuer fails relevantly to connect legal theory with the facts of the case. It is unclear from the pursuer’s pleadings what the link is alleged to be between the defenders’ decision to initiate the section 12 procedure and the pursuer’s right to earn her living and to pursue her chosen profession. She does not aver any factual foundation for the proposition that the section 12 investigation affected her prospects of earning a living or from following her profession of advocate or from developing relationships with others. In this connection, I note that in Article 1 of condescendence the pursuer avers that she is a member of the Faculty of Advocates and that she practises from the Advocates Library; in Article 38 the pursuer admits that since resigning from her office she has held herself out for instruction as an advocate. She provides no information as to the extent of her work as an advocate since her resignation or of her earnings during that period. In Article 25 of condescendence the pursuer avers that her ‘effective constructive dismissal’ has damaged her professional reputation and the loss of her position as Chair has had a negative impact upon her material well‑being and that of her family. No further detail is provided as to any of these alleged effects; it is unclear in what ways the pursuer’s professional reputation is said to have been affected and there are no averments explaining the impact on her and her family in financial terms.
[64] 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.
Conclusion
[65] The pursuer has not pled a relevant case of breach of contract or infringement of her Article 8 rights. In consequence, the action must be dismissed. I have sustained the defenders’ first plea-in-law and repelled the pursuer's pleas. I have reserved all questions as to expenses.