Introduction

In the case of The British Broadcasting Corporation v The Right Honourable Lady Smith, Chair of the Scottish Child Abuse Inquiry ([2021] CSOH 35), the Scottish Court of Session addressed critical issues surrounding the use of restriction orders by public inquiry officials and their implications on the principles of open justice and freedom of the press.

The petitioner, the British Broadcasting Corporation (BBC), challenged the restriction orders imposed by the respondent, Lady Smith, in her capacity as Chair of the Scottish Child Abuse Inquiry. The core of the dispute revolved around the BBC's desire to report on proceedings in the Employment Tribunal where Lady Smith was the subject of a claim alleging disability discrimination, harassment, and victimization.

Summary of the Judgment

The court examined whether the restriction orders issued by Lady Smith under sections 18 and 19 of the Inquiries Act 2005 were ultra vires (beyond her legal authority) and whether they breached the European Convention on Human Rights (ECHR) Article 10 concerning freedom of expression.

The judgment concluded that the original restriction orders were indeed ultra vires as they extended beyond the powers conferred by the Act. Additionally, these orders were found to be tainted by apparent bias, as Lady Smith, being a party to the Employment Tribunal proceedings, exerted undue control over the dissemination of information related to her case.

The court granted permission to review the replacement restriction order issued after the original claim was withdrawn but sustained the third plea in law for the respondent, ultimately dismissing the petition. This decision underscored the necessity for public inquiries to operate within their statutory limits and maintain impartiality.

Analysis

Precedents Cited

The judgment referenced several key cases that shaped the court's reasoning:

• A v Secretary of State for the Home Department (2014) - Emphasizing the constitutional principle of open justice.
• Dring v Cape Intermediate Holdings Ltd (2019) - Affirming the application of open justice to all courts and tribunals.
• Porter v Magill (2002) - Establishing the test for apparent bias.
• Dimes v The Proprietors of the Grand Junction Canal (1852) and Pinochet (2000) - Discussing automatic disqualification due to bias.

These precedents collectively reinforced the principles of open justice, the necessity of unbiased judicial processes, and the limitations of statutory powers in restricting public access to judicial proceedings.

Legal Reasoning

The court engaged in a detailed statutory interpretation of sections 18 and 19 of the Inquiries Act 2005. It concluded that:

• Ultra Vires: Lady Smith's original restriction orders extended beyond her authority as defined by the Act. The orders attempted to prevent the disclosure of the very existence of the Employment Tribunal proceedings, which was not within the scope of matters the Inquiry was empowered to restrict.
• Apparent Bias: By making orders that directly affected the publication of proceedings in which she was a party, Lady Smith engaged in actions that could be perceived as self-serving, thereby violating the impartiality expected of a judicial figure.
• Open Justice: The principles of open justice were paramount. The court emphasized that while public inquiries have legitimate interests in protecting sensitive information, these must be balanced against the public's right to be informed and the media's freedom to report.

The court also scrutinized the process by which the replacement restriction order was issued, determining that permission was required to challenge it and ultimately granting such permission due to the grounds presented.

Impact

This judgment sets a significant precedent in delineating the boundaries of statutory powers granted to public inquiry chairs. It underscores the necessity for such officials to operate within the confines of their legal authority, especially when such actions intersect with media freedoms and public rights.

Future cases involving restriction orders in public inquiries will likely reference this judgment to assess the legality and impartiality of similar orders. Moreover, it serves as a safeguard ensuring that public inquiries do not overreach their mandates, thereby preserving the integrity of both the inquiry process and the principle of open justice.

Complex Concepts Simplified

Conclusion

The judgment in BBC v Lady Smith serves as a pivotal reference point in balancing the authority of public inquiry officials with the foundational legal principles of open justice and press freedom. By invalidating the ultra vires restriction orders and highlighting the issues of apparent bias, the court reinforced the necessity for transparency and impartiality in public inquiries.

This case underscores the importance of adhering strictly to statutory powers and maintaining public trust through unbiased administration of justice. Moving forward, public inquiries and their officials must carefully navigate their authority to ensure that restrictions on information dissemination do not infringe upon democratic principles and the public’s right to information.