Davidson v Scottish Ministers (No 2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD CULLEN OF WHITEKIRK,LORD WOOLF,LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD
Judgment Date15 July 2004
Neutral Citation[2004] UKHRR 1079,[2004] UKHL 34
Docket NumberNo 2
Date15 July 2004

[2004] UKHL 34

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Woolf

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Cullen of Whitekirk

Davidson (AP)
(Original Respondent and Cross-appellant)
and
Scottish Ministers
(Original Appellants and Cross-respondents)
LORD BINGHAM OF CORNHILL

My Lords,

1

Before the House are an appeal by the Scottish Ministers and a cross-appeal by Mr Davidson. The cross-appeal raises a procedural issue which arises only if the appeal fails. The appeal raises an important question of substance. It is whether the Second Division of the Court of Session (the Lord Justice Clerk (Gill), Lord Kirkwood and Lord Philip), in its decision of 11 September 2002 ( Davidson v Scottish Ministers (No 2) 2003 SC 103), was right to set aside decisions made by an Extra Division of the Court of Session (Lord Marnoch, Lord Hardie and Lord Weir) on 18 and 20 December 2001 on the ground that those decisions were vitiated by apparent bias and want of objective impartiality on the part of one member of the court.

2

The facts relevant to the present appeal are not in dispute. From about 2 April 2001 until 18 August 2001 Mr Davidson was detained as a remand prisoner in C Hall of HM Prison Barlinnie. Thereafter he was detained as a convicted prisoner in E Hall. He complained of the conditions in which he was held, contending that they breached article 3 of the European Convention on Human Rights, and requested a transfer, but was not at that stage transferred. On 24 October he lodged a petition for judicial review before the Court of Session seeking (1) declarator that the conditions of his detention were incompatible with article 3 of the European Convention; (2) an order ordaining the Scottish Ministers to secure his transfer to conditions which would comply with article 3, and for such an order to be made ad interim; and (3) damages. On 26 October 2001 the Lord Ordinary, Lord Johnston, refused to make interim orders against the Scottish Ministers on the ground, among others, that section 21 of the Crown Proceedings Act 1947, properly interpreted, precluded the grant of any coercive order against the Scottish Ministers. He also declined to make any order declaratory of the rights of the parties ad interim. He granted Mr Davidson leave to reclaim.

3

The reclaiming motion was heard by the Extra Division already referred to over seven days in November - December 2001. Although other issues were raised, the focus of the argument was on the competency of granting an interim order of specific performance against the Scottish Ministers. On 18 December the Extra Division refused Mr Davidson's reclaiming motion: Davidson v Scottish Ministers 2002 SC 205. Mr Davidson sought leave to appeal to the House against this interlocutor, but on 20 December 2001 a majority of the Extra Division (Lord Marnoch and Lord Hardie; Lord Weir dissenting) refused leave.

4

Mr Davidson later became aware that Lord Hardie had, when holding the office of Lord Advocate in Her Majesty's Government and in the context of piloting and promoting the Scotland Bill in the House of Lords, advised the House on the effect of section 21 of the Crown Proceedings Act 1947 on the remedies which might be available to the courts in Scotland against the Scottish Ministers. The statement of facts agreed between the parties for purposes of this appeal records the active part played by Lord Hardie during the passage of the Bill through the House of Lords and continues:

"In the context of his promoting the Scotland Bill, Lord Hardie as Lord Advocate had, in October and November 1998, assured Your Lordships' House in recommending rejection of certain Opposition amendments to the Scotland Bill, that the effect of Section 21 of the Crown Proceedings Act 1947 was to prevent the courts in Scotland from making any order for specific performance against the Appellants as part of the Crown. In the course of the above mentioned reclaiming motion and motion for leave, Lord Hardie at no time adverted to his previously expressed views to the Westminster Parliament as Lord Advocate on the issue of the effect of Section 21, and made no offer to recuse himself from the court hearing the reclaiming motion on this matter or on the hearing of the subsequent application for leave to appeal. In these circumstances, the Respondent was apprehensive that, as a result of the participation of Lord Hardie therein, the Extra Division which pronounced the said interlocutors of 18 and 20 December 2001 did not have the appearance of impartiality."

5

On 17 May 2002 Mr Davidson lodged a petition to the nobile officium of the Court of Session, asking the court to set aside the interlocutors of 18 and 20 December 2001 on the ground that the decisions of the Extra Division were vitiated for apparent bias and want of objective impartiality on the part of the court as a result of Lord Hardie's participation in them. In its decision now under appeal the Second Division unanimously set aside the interlocutors of 18 and 20 December 2001, and ordered that the reclaiming motion be reheard by a different division of the Inner House. It refused Mr Davidson's prayer that he be granted leave to appeal to the House against the interlocutor of 18 December 2001. Mr Davidson himself was released from HMP Barlinnie nearly two years ago, but it was not suggested that the House should, on that ground, decline to decide this appeal, and leading counsel for the Scottish Ministers expressly recognised the constitutional importance of the underlying issue as to the effect in Scotland of section 21 of the 1947 Act and the permissibility of coercive orders against the Scottish Ministers.

6

The rule of law requires that judicial tribunals established to resolve issues arising between citizen and citizen, or between the citizen and the state, should be independent and impartial. This means that such tribunals should be in a position to decide such issues on their legal and factual merits as they appear to the tribunal, uninfluenced by any interest, association or pressure extraneous to the case. Thus a judge will be disqualified from hearing a case (whether sitting alone, or as a member of a multiple tribunal) if he or she has a personal interest which is not negligible in the outcome, or is a friend or relation of a party or a witness, or is disabled by personal experience from bringing an objective judgment to bear on the case in question. Where a feature of this kind is present, the case is usually categorised as one of actual bias. But the expression is not a happy one, since "bias" suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could prevent the bringing of an objective judgment to bear, which could distort the judge's judgment.

7

Very few reported cases concern actual bias, if that expression has to be used, and it must be emphasised that this is not one of them. Both before the Second Division and before the House, counsel for Mr Davidson were at pains to disclaim any challenge to the personal honour or judicial integrity of Lord Hardie. They are not in question. It has however been accepted for many years that justice must not only be done but must also be seen to be done. In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so. The judge must be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge's judgment, and must appear to be so. Following some divergence of view between the courts of England and Wales and Scotland on the correct formulation of the correct test (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, paragraph 16), the Scottish test has come to be accepted. In Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, 494, paragraph 103, my noble and learned friend Lord Hope of Craighead expressed the test in terms accepted by the Second Division and by both parties to this appeal:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

That, it is agreed, is the test which must be applied to the facts of this case.

8

In their judgments under appeal the Lord Justice Clerk and Lord Kirkwood considered with some particularity the amendment to section 38(2) of the 1947 Act which Lord Hardie successfully moved and the two amendments which he successfully resisted. The amendment to section 38(2) extended the definition of "officer" to include a member of the Scottish Executive, an amendment which may scarcely have been necessary given the clause which became section 117 of the Act. The two amendments successfully resisted related to the power of the Secretary of State under what became section 58 and to the introduction or making of legislation (a new clause proposed to be inserted between what are now sections 107 and 108): in neither instance was the court to have power to compel. The particularity of their Lordships' consideration enabled Mr Brailsford QC, for the Scottish Ministers, to submit that these were not the points which fell to be decided by the Extra Division. There is force in this criticism. But it is in my opinion necessary to adopt an altogether broader approach. The fair-minded and informed observer who has considered the facts is not to be credited with mastery of the minutiae of drafting. Such an observer will pay attention to the wood, not the trees. The wood is represented by two statements of Lord Hardie. The first was on 28 October 1998 (HL Hansard, vol. 593, col...

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