Davidson v Scottish Ministers (No 2)

JurisdictionScotland
Judgment Date11 September 2002
Docket NumberNo 6
Date11 September 2002
CourtCourt of Session (Inner House - Second Division)

SECOND DIVISION

No 6
DAVIDSON
and
SCOTTISH MINISTERS (No 2)

Administrative lawConstitutional lawnobile officiumNatural justiceWhether alleged breach of apparent judicial impartiality contravened petitioner's human rightsScotland Act 1998 (cap 46), sec 44Crown Prosecution Act 1947 (cap 44), sec 21European Convention on Human Rights, art 6(1)1

Section 21 of the Crown Proceedings Act 1947 provides, inter alia, that in any proceedings against the Crown, the court shall not make an order for specific performance, but may make an order declaratory of the parties' rights; and that the court shall not in any civil proceedings make any order against an officer of the Crown if the effect would be to give any relief against the Crown which could not have been obtained in proceedings against it. Section 38(2) provides that officer in relation to the Crown includes a member of the Scottish Executive. Article 6(1) of the European Convention on Human Rights provides, inter alia, that in the determination of his civil rights and obligations, a person is entitled to a fair and public hearing by an independent and impartial tribunal.

In 2001 the petitioner, a serving prisoner, brought a petition for judicial review of an alleged decision of the Scottish Ministers to detain him in inhumane and degrading conditions. He sought, inter alia, declarator that the conditions of his detention were incompatible with art 3 of the European Convention on Human Rights, and an order ordaining the Scottish Ministers to transfer him to conditions which would be campatible with it. The Lord Ordinary refused the petitioner's motions for interim orders, on, inter alia, the grounds of incompetency. The petitioner reclaimed. The reclaiming motion was heard by an Extra Division, which included Lord Hardie. The central question in the reclaiming motion was whether a Scottish court could grant an order for specific performance against the Scottish Ministers, given the terms of sec 21 of the Crown Proceedings Act 1947. On 18 December 2001 the court refused the reclaiming motion and adhered to the decision of the Lord Ordinary (Davidson v Scottish Ministers, 2002 SC 205). On 20 December 2002 the court refused the petitioner leave to appeal to the House of Lords.

The petitioner brought a petition to the nobile officium of the Court of Session on the ground that the participation of Lord Hardie in the decision was an apparent berach of judicial impartiality, since while Lord Hardie was Lord Advocate, he was actively involved in the passage of the Scotland Bill through Parliament, and advised Parliament as to the effect of sec 21 of the Crown Proceedings Act 1947. He proposed an amendment to that Act whereby the definition of officer in sec 38(2) was extended to include a member of the Scottish Executive, and he opposed as unnecessary amendments proposed by the opposition intended to protect members of the executive from being subject to orders for specific performance. There was no dispute between the parties about the facts. It was agreed that the test to be applied was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The respondents contended that in his statements in Parliament, Lord Hardie was expressing a ministerial rather than a personal opinion, and that he must be taken to have abided by his judicial oath. It was conceded that if Lord Hardie's contribution could not be allowed to stand, the decision must be set aside.

Held: (1) that the involvement of the judge in the passage of the Scotland Bill was more than a formality; he piloted the Bill through the House of Lords, proposed an amendent to existing legislation which extended the protection afforded to the Crown to the Scottish Ministers, and expressed an opinion in Parliament on the precise issue which was subsequently for determinaiton by the Extra Division, so that the interlocutor should be set aside (p 110G111A, 117H118D, 119CE; (2) that haivng set the interlocutor aside, the appropriate course standing the ealry stage the petition for judicial review had reached was to remit the case for rehearing before a new Division (p 113C, 118E, 123D; and prayer of petition granted.

Scott Davidson brought petition to the nobile officiumof the Court of Session craving the court to set aside decisions of an Extra Division refusing a reclaiming motion in a petition for judicial review of an alleged decision of the Scottish Ministers to detain him in inhumane and degrading conditions, and refusing him leave to appeal to the House of Lords. The Scottish Ministers were called as respondents.

The full facts and averments of the parties appear sufficiently from the opinions of their Lordships.

Cases referred to:

Bradford v McLeod 1986 SLT 244

Calvin v CarrELR [1980] AC 574

Davidson v Scottish MinistersSC 2002 SC 205

Doherty v McGlennan 1997 SLT 444

Hauschildt v Denmark (1990); 12 EHRR 266

Hoekstra v HM Advocate (No 2)SC 2000 JC 387

In reMedicaments and Related Classes of Goods (No 2)WLR [2001] 1 WLR 700

In reMedicaments and Related Classes of Goods (No 4)WLR [2002] 1 WLR 269

In reS (Care Order: Implementation of Care Plan)WLR [2002] 2 WLR 720

Kartinyeri v Commonwealth of AustraliaUNK (1998) 156 ALR 300

Laird v Tatum 409 US 824 (1972)

Locabail (UK) Ltd v Bayfield Properties LtdELR [2000] QB 451

McDonald v Secretary of State for ScotlandSC 1994 SC 234

McGonnell v United Kingdom (2000); 30 EHRR 289

McGrath v Kristensen 340 US 162 (1950)

Millar v DicksonSC 2002 SC (PC) 30

Panton v Minister of FinanceUNK [2001] UKPC 33

Piersack v Belgium (1983); 5 EHRR 169

Porter v MagillWLR [2002] 2 WLR 37

Procola v Luxembourg (1996); 22 EHRR 193

R v Bow Street Magistrate, ex p Pinochet Ugarte (No 2)ELR[2000] 1 AC 119

Salaman v United Kingdom ECHR 15 June 2000

The cause called before the Second Division, comprising the Lord Justice Clerk (Gill), Lord Kirkwood and Lord Philip for a hearing on the summar roll on 11 and 12 July 2002.

At advising, on 11 September 2002 -

Introduction

LORD JUSTICE CLERK [1] This is a petition to thenobile officium of the court. The petitioner craves the Court to set aside two decisions of an Extra Division on the ground that one of the judges of the Division ought not to have taken part in them or ought at least to have given the parties the opportunity to object to his doing so.

The history

[2] The petitioner is a prisoner in HM Prison, Barlinnie. On 24 October 2001 he and another prisoner in Barlinnie lodged a petition for judicial review of an alleged decision by the Scottish Ministers to continue their detention in inhumane and degrading prison conditions, contrary to art 3 of the European Convention on Human Rights (the Convention). In that petition they sought (1) declarator that the conditions of their detention were incompatible with art3; (2) an order ordaining the Scottish Ministers to secure their transfer to conditions that were compliant with art 3, and an interim order to that effect; and (3) damages.

[3] On 26 October 2001, without answers having been lodged, the Lord Ordinary refused the petitioners' motions forinterim orders for specific performance on the grounds of incompetency, lack of a prima facie case and balance of convenience.

[4] The present petitioner reclaimed. By interlocutor dated 31 October 2001 an Extra Division appointed the case to the summar roll for a hearing on the question of competency.

[5] The reclaiming motion was heard by an Extra Division consisting of Lord Marnoch, Lord Hardie and Lord Weir. During the course of the hearing, on the unopposed motion of the petitioner, the petition was amended by the addition of craves for declarators (a) that the order for specific performance sought against the Scottish Ministers could competently be made in an application to the supervisory jurisdiction under rule of court 58 and was not precluded by sec 21 of the Crown Proceedings Act 1947 (the 1947 Act), and (b) that such an order under sec 45(b) of the Court of Session Act 1988 (the 1988 Act) could competently be made and was not precluded by sec 21 of the 1947 Act; and by the addition of two pleas-in-law supporting the new craves.

[6] The Extra Division had doubts as to whether the petition constituted an application to the supervisory jurisdiction at all (cf Lord Marnoch at para [5]; Lord Hardie at para [4]), but allowed the debate to proceed on the basis that it did. On 18 December 2001 the Extra Division repelled the petitioner's new pleas-in-law, refused the reclaiming motion and adhered to the interlocutor of the Lord Ordinary (cf Davidson v Scottish Ministers).

[7] On 20 December 2001 the same Division, Lord Weir dissenting, refused the petitioner leave to appeal to the House of Lords.

The present petition

[8] The petitioner has now invoked the nobile officium on the following basis:

That the petitioner is reasonably apprehensive that the Extra Division which pronounced the said interlocutors of 18th and 20th December 2001 was not apparently impartial as a result of the participation of Lord Hardie as hereinafter condescended upon. On the basis that a breach of the requirements for judicial impartiality may be purged in civil matters by an appeal to a higher court, the petitioner now applies to the nobile officiumfor the Extra Division's interlocutor of 20 December 2001 refusing the petitioner leave to appeal to the House of Lords to be set aside, and for leave now to be granted by this court to appeal against the interlocutor of 18th December 2001 to the House of Lords (stat. VIII).

The petitioner alleges that the breach of apparent judicial impartiality occurred because Lord Hardie, when he was Lord Advocate, was involved in significant and active promotion of the Scotland Bill (stat X); that in the context of piloting and promoting the Scotland Bill through the House of Lords, [he] repeatedly advised the House as to the effect of sec 21 of...

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