Catholic Nuns Raise "Bias" Issue over Child Abuse Inquiry Chairwoman

The Telegraph
June 26, 2015

http://www.telegraph.co.uk/news/uknews/law-and-order/11702595/Catholic-nuns-raise-bias-issue-over-child-abuse-inquiry-chairwoman.html

Catholic nuns raise 'bias' issue over child abuse inquiry Photo: Alamy

Catholic nuns who faced a barrage of compensation claims from youngsters in care are seeking to overturn the appointment of a leading lawyer as head of an inquiry into historical child abuse in Scotland.

The Congregation of the Poor Sisters of Nazareth and The Daughters of Charity of St Vincent de Paul are seeking to set aside the decision of the Scottish Ministers to make Susan O'Brien QC chair of the inquiry in a judicial review.

Miss O'Brien, who previously sat on an inquiry into the death of Caleb Ness in Edinburgh, was appointed in May to the new role by Cabinet Secretary for Education and Lifelong Learning Angela Constance and her appointment is due to begin on July1.

The religious groups have expressed concerns that Miss O'Brien will end up acting as judge after previously appearing on behalf of people who were pursuing claims against one of them.

Their counsel Alastair Duncan QC told the Court of Session in Edinburgh: "The Scottish Ministers would be acting unlawfully, unreasonably and irrationally in pursuing such an appointment."

But lawyers acting for the Scottish Government maintain that the legal challenge is "fundamentally flawed". Counsel for the Ministers, Shona Haldane QC, said: "A thoughtful, careful and rational process has taken place and all relevant factors have been taken into account."

Mr Duncan said: "We make no criticism or allegation about Susan O'Brien. This case is wholly about the confidence society is expected to have in tribunals, inquiries and courts. This appointment, regrettably, does not meet that standard."

The religious groups have expressed concerns that Miss O'Brien will end up acting as judge after previously appearing on behalf of people who were pursuing claims against one of them

The court heard that convents run by the nuns came to be involved in the care of children in the 1950s, 60s and 70s who often came from troubled backgrounds and resided with them because of action taken by local authorities.

In 1997 a series of newspaper articles appeared alleging abuse of children residing at homes run by the nuns. A large number of court actions were raised on behalf of former residents with the Poor Sisters facing more than 300 claims.

Legal proceedings were also brought against a number of other religious and charitable groups and central and local government over the issue. A major defence in many cases was that they were time barred.

A test case appeal was taken to the House of Lords and Miss O'Brien represented the pursuers who were former residents of a home operated by the Poor Sisters.

They alleged that they had been subjected to physical and emotional abuse at the hands of nuns and one said that throughout the time at Nazareth House in Glasgow's Cardonald area "a brutal, violent and cruel regime" was perpetrated by thenuns.

It is said in the action brought by the nuns that the Law Lords refused the appeal in which Miss O'Brien appeared. She continued to accept instructions on behalf of claimants in other cases concerning historic child abuse.

Mr Duncan said that the religious groups' position was "that the appointment of Miss O'Brien offends against the common law rules as regards apparent fairness".

"The legitimate expectation that I say arises is that the Scottish Ministers will respect fair trial rights in this inquiry," he said

Mr Duncan said that neither group was asserting that Miss O'Brien was actually biased against them, but the issue of apparent bias was raised.

He said his clients' concern was that "Miss O'Brien had acted for clients alleging abuse against them, that she had supported the allegations that were made by appearing as counsel for the individuals and that she was now being asked to adjudicate on the very same issues".

He said that whether or not the two individuals she had appeared for previously in the House of Lords case appeared at the inquiry "the fact of the matter is it is almost certain that the allegations that they made and others made about my clients will be ventilated at the inquiry".

Miss Haldane said that Miss O'Brien had been acting as counsel in cases where a point on time bar had been taken and did not support or espouse a cause.

She said: "The well informed observer would have that information to hand and would know to appear as counsel in a case is not the same as espousing or campaigning for a cause."

"She has not moved from adviser to adjudicator. This is not a dispute between the same parties. Miss O'Brien has been appointed as chair of this inquiry under statute and terms of reference which make it explicit her role is investigatory," she said.

The Ministers said Miss O'Brien has acted for thousands of parties during her legal career but also has experience in a judicial role having sat both as a sheriff and an employment judge and has been trained to determine cases impartially on the evidence.