Beggs v Scottish Ministers
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD MANCE |
| Judgment Date | 07 February 2007 |
| Neutral Citation | [2007] UKHL 3 |
| Court | House of Lords |
| Date | 07 February 2007 |
[2007] UKHL 3
HOUSE OF LORDS
Appellate Committee
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Mance
Appellants:
Alan Dewar QC
James Mure
Pushpinder Saini
(Instructed by Solicitor to the Scottish Executive)
Respondents:
Aidan O'Neill QC
Simon Collins
Jason Coppel
(Instructed by Balfour and Manson, agents for Taylor & Kelly)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Rodger of Earlsferry. I agree with the observations made by him, and for the reasons he gives I would allow the appeal to the extent proposed by him.
My Lords,
I adopt with gratitude the explanation which has been given by my noble and learned friend Lord Rodger of Earlsferry of the background to this appeal and of the circumstances which have narrowed the issues which need to be considered by your Lordships to dispose of it. For the reasons which he gives, with which I am in full agreement, I would allow the appeal and make the order that he proposes.
I should like to add a few observations on the question whether the First Division erred in law when on 11 March 2005 they ordered Mr Tony Cameron, Chief Executive, Scottish Prison Service, and Mr Ian D F Gunn, Governor of H M Prison, Peterhead, to attend when the case called By Order on 15 March 2005. Their Lordships did not give reasons at that stage for pronouncing an interlocutor in these terms. We do know however that senior counsel for the Scottish Ministers made it clear during the hearing on 27-28 January 2005 that they took full responsibility for the fact that the undertaking that was given by them on 5 September 2003 had been breached, and that at no time did they attempt to devolve responsibility to civil servants for its breach and for any contempt of court that had been committed. We also know that the civil servants who were named in the interlocutor were in attendance at court during that hearing to hear the debate and to offer such assistance to agents and counsel as might be necessary. So, as Mr Dewar QC explained in the course of the hearing before your Lordships, they were aware of the circumstances which had led to the breach of the undertaking. But they were not parties to the undertaking, nor were they parties to the proceedings against the Scottish Ministers.
The interlocutor which was pronounced by the First Division on 15 March 2005 contains a finding that the Scottish Ministers were in contempt. No reference is made in that interlocutor to the two civil servants who were named in the interlocutor of 11 March 2005. The explanation for the order that was made in Mr Gunn's case is to be found in the opinion of the court which was delivered by Lord President Cullen: 2005 CSIH 25, 2005 1 SC 342. In para 46 of that opinion the Lord President said that the Scottish Ministers would be in contempt of court if civil servants, in discharging the Scottish Ministers' functions, failed to take reasonable steps to ensure that the undertaking was adhered to, and if that failure was so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking. In para 50 he said that the conduct of the civil servants, and in particular of the Governor of HMP Peterhead, Mr Gunn, was such as to meet the test which he had set out in para 46. Elaborating on this point, he described the circumstances that led the court to the conclusion that the undertaking was not taken seriously enough by them and that the Scottish Ministers were in contempt of court.
In para 46 of the opinion the Lord President said that the general approach which the court was taking was similar to that adopted by Woolf LJ in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926. He referred also to Lord Wilberforce's speech in Heaton's Transport (St Helen's) Ltd v Transport and General Workers' Union [1973] AC 15. In Tuvalu at p 936E-G Woolf LJ said that where a company is ordered not to do certain acts or gives an undertaking to the like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and that if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. In Heaton's Transport Lord Wilberforce examined the position of shop stewards within the Union in relation to the taking of industrial action in breach of injunctions granted by the Industrial Court. Having noted that they were agents rather than servants, he said that this was not an important factor in that case. In each case the test to be applied is the same: was the servant or agent acting on behalf of, and within the scope of the authority conferred by, the master or principal?
Mr Dewar did not seek to argue that the First Division had applied the wrong test when they concluded that the Scottish Ministers were in contempt because the civil servants, and in particular, the Governor of HMP Peterhead, did not take the undertaking seriously enough. But the fact that they applied this test suggests that when they ordered Mr Gunn to attend when the case called By Order on 15 March 2003 they assumed that he was in the same position as a servant or agent in relation to the undertaking which had been given by the Scottish Ministers.
The court's practice where an allegation of contempt is made in the High Court of Justiciary against a newspaper or broadcaster is set out in Part B of the Memorandum by the Lord Justice General of Contempt of Court which came into force on 1 April 2003. It is the practice for representatives of the newspaper or broadcaster, such as the editor or the producer or other senior employees, to be ordered to appear in court to answer the allegation. But, as para 2 of Part B explains, an order for the personal appearance of the editor or producer should only be made where the alleged contempt is of a kind where his appearance in person is thought to be necessary so that an adequate explanation can be given or with a view to deciding what punishment is appropriate. The advice that is given in the Memorandum was not directly applicable to this case. These were civil proceedings, brought at the appellant's instance, to which different considerations apply. But it seems likely that their Lordships' familiarity with the practice in the High Court played a part in their decision to order Mr Gunn to appear. As the Lord President said in para 51, the order for his attendance was made on the basis that he was responsible for the failure to take reasonable steps to ensure that the Scottish Ministers' undertaking was complied with.
In my opinion two points require to be made in the light of this background. The first is that the status of civil servants is different from that of employees or agents of a body such as a company or a trade union. Civil servants are servants of the Crown, not of the ministers who are answerable to Parliament for the departments in which they serve: see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. The status of civil servants in Scotland was not affected by the devolution settlement. The Scottish Ministers are answerable to the Scottish Parliament, and to the court for any undertakings that they may give or any peremptory orders that may be made against them, for the actions of officials within the various branches of the Scottish Executive. But the officials are not their servants or agents. It is the fact that they perform their functions under direction and control of the Scottish Ministers that makes the Scottish Ministers answerable for what they do or fail to do.
Ministerial responsibility for acts and failures of civil servants in their departments cannot be delegated. So where an undertaking is given such as that by the Scottish Ministers in this case, responsibility to the court for its observance is that of the Scottish Ministers, not of the officials or other civil servants within the Scottish Executive. It is the Scottish Ministers, not the civil servants, who are answerable for any breach of the undertaking. This principle applies without exception, irrespective of the various ways in which the breach may attract public criticism or penalty. The effect of the interlocutor of 11 March 2005 was to require the Mr Gunn to attend personally and in public when the court delivered its opinion in which his conduct was criticised, under pain of punishment if he failed to do so. This was a breach of the principle which places the responsibility for such acts and failures exclusively on the ministers.
The second point is a necessary corollary to the first. While the mere fact that an undertaking has been given to the court by the Scottish Ministers does not expose the officials or other civil servants to liability should it be breached, they do not enjoy a complete immunity from the consequences of their own actions. This was the point which was explored by Woolf LJ in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926, 936-938. The director of a company who is aware of the order or undertaking and wilfully fails to take the steps which are necessary to give effect to the order or undertaking can be punished for contempt. In that event it is his own culpable conduct which exposes him to that liability.
I would apply the same principle to civil servants who, in the knowledge that an order has been made against or that an undertaking has been given by ministers, wilfully act or fail to act in breach of it. Such conduct in...
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