Introduction

The case of Greater Glasgow Health Board v The Right Honourable Lord Brodie KC PC ([2025] CSOH 12) presents a pivotal judicial review concerning the application of the principle of fairness within an inquisitorial process. The petitioner, Greater Glasgow Health Board, sought to challenge the decision of the Chair of the Scottish Hospitals Inquiry to exclude an independently commissioned expert report from being considered as evidence. This commentary delves into the intricacies of the case, elucidating the background, key issues, parties involved, and the broader legal implications stemming from the court's decision.

Summary of the Judgment

The Court of Session, presided over by Lady Wise, addressed a petition for judicial review filed by the Greater Glasgow Health Board against Lord Brodie KC PC, the Chair of the Scottish Hospitals Inquiry. The central issue revolved around the Chair's refusal to admit an independent expert report authored by Professor Hawkey, Dr. Agrawal, and Dr. Drumwright into the Inquiry's evidence base during the Glasgow III phase. The Health Board contended that excluding this report breached the duty of fairness under the Inquiries Act 2005. The court ultimately declared the Chair's decision unlawful in principle and unfair, thereby granting a declarator to that effect.

Analysis

Precedents Cited

The judgment extensively referenced several pivotal cases to underpin the court's reasoning:

• R (Associated Newspapers Limited) v The Right Honourable Lord Justice Leveson [2012] EWHC 57 (Admin): Highlighted the overarching duty of fairness in public inquiries.
• Mahon v Air NZ [1984] A.C. 808: Emphasized that inquiry Chairs must heed all relevant evidence to ensure fairness.
• Reg v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456: Affirmed the necessity for individuals to have the opportunity to present and challenge evidence.
• F Hoffmann-La Roche and Co A.G. v Secretary of State for Trade and Industry [1975] A.C. 295: Established that natural justice applies to both adversarial and inquisitorial procedures.
• R v Secretary of State for the Home Department Ex parte Doody [1994] 1 A.C. 531: Reinforced that fairness is context-dependent and fact-specific.
• BBC v Scottish Child Abuse Inquiry Chair 2022 SC 184: Addressed the court's role in handling alleged procedural unfairness in inquiries.
• Conway v Secretary of State for Scotland 1996 SLT 689: Discussed the conditions under which courts may entertain petitions that have or have not practical consequences.

Legal Reasoning

The court's legal reasoning centered on interpreting Section 17 of the Inquiries Act 2005, which mandates that the Chair of an inquiry must act with fairness. Lady Wise emphasized that while the Chair holds broad discretion in managing the inquiry, this discretion is not unfettered and must align with principles of natural justice.

The Health Board argued that the exclusion of their expert report prevented a balanced consideration of evidence, thereby hindering fair proceedings. The court scrutinized the Chair's rationale, which posited that admitting the report would shift the inquiry's nature from inquisitorial to adversarial, thus disrupting procedural fairness. However, the court found that admitting the report could be managed within an inquisitorial framework without devolving into adversarial litigation.

Importantly, the court rejected the notion that the practical difficulties cited by the Chair justified the exclusion of the report when weighed against the fundamental principle of fairness. Lady Wise underscored that procedural integrity should not be compromised by logistical challenges, especially when the evidence in question is pertinent to the inquiry's central issues.

Impact

This judgment reinforces the paramount importance of procedural fairness in inquisitorial settings. It sets a precedent that inquiry Chairs must judiciously balance procedural considerations with the imperatives of a fair and comprehensive examination of evidence. Future inquiries under the Inquiries Act 2005 may draw upon this decision to ensure that core participants are afforded equitable opportunities to present and challenge evidence, thereby enhancing the transparency and credibility of public inquiries.

Additionally, the ruling delineates the boundaries of the Chair's discretion, asserting that procedural flexibility should not eclipse the foundational principles of natural justice. This jurisprudence may influence how evidence is managed and admitted in various quasi-judicial bodies, fostering a more balanced approach to evidence evaluation.

Complex Concepts Simplified

Inquisitorial vs. Adversarial Proceedings

Inquisitorial Proceedings: A system where the judge plays an active role in investigating the facts, seeking evidence, and determining the truth. It is less confrontational and does not involve opposing parties presenting their cases as in a contest.

Adversarial Proceedings: A legal system where opposing parties present their cases to an impartial judge or jury. Each side actively contests the other, aiming to persuade the factfinder of their position.

Duty of Fairness

A legal obligation requiring decision-makers to act impartially, consider all relevant evidence, and provide an opportunity for affected parties to present and challenge evidence to ensure just outcomes.

Declarator

A judicial determination that declares the rights of parties without necessarily providing a remedy beyond the declaration itself.

Conclusion

The Court of Session's decision in Greater Glasgow Health Board v Lord Brodie underscores the inviolable nature of procedural fairness within inquisitorial processes. By declaring the Chair's exclusion of the expert report as unlawful and unfair, the court reinforced the necessity for comprehensive and balanced evidence consideration in public inquiries. This judgment not only clarifies the limits of administrative discretion under the Inquiries Act 2005 but also fortifies the principles of natural justice against procedural oversights. Consequently, it serves as a crucial reference point for ensuring that future inquiries maintain their integrity, transparency, and impartiality, thereby upholding public trust in judicial and quasi-judicial institutions.