Scott and Davidson v Scottish Ministers (No 1)

JurisdictionScotland
CourtCourt of Session (Inner House - Extra Division)
Judgment Date18 December 2001
Docket NumberNo 19

EXTRA DIVISION

Lord Johnston

No 19
DAVIDSON
and
SCOTTISH MINISTERS

Administrative law—Judaical review—Whether competent for court to make order of specific performance against the Crown—Crown Proceedings Act 1947 (10 and 11 Geo 6, c 440 sec 21, court of Session Act 1988 (cap 36) sec 45(b)1

Words and phrases—“Civil proceedings”—Crown Proceedings Act 1947 (10 and 11 Geo 6, c 440 sec 21)1

Section 21 of the Crown proceedings Act 1947 provides that in any “civil proceedings” against the Crown, “the court shall not grant an injunction or make an order for specific performance.” Section 45(b) of the Court of Session Act 1988 provides that the Court of Session may “order the performance of any statutory duty”.

A prisoner in HM Prison, Barlinnie, brought a petition under the judicial review procedure alleging that the prison conditions were in breach of the European Convention on Human Rights in certain respects and seeking to be transferred to other conditions of detention. The Lord Ordinary refused his motion for interim transfer. The prisoner reclaimed. The hearing which is the subject of the present report was restricted to the question of whether in view of sec 21 of the 1947 Act, the petitioner could competently obtain an order of specific performance or whether his remedy was restricted to an order declaratory of his rights. The petitioner argued that (1) the order sought was competent under sec 45 (b) of the Court of Session Act 1988 and (2) judicial review applications to the supervisory jurisdiction of the Court of Session were not covered by sec 21 because (a) applications to the supervisory jurisdiction were not “civil proceedings” within the meaning of that section as (i) that section applied only to civil proceedings in depict and (ii) the words must have the same meaning as in sec 44 where they refer to the sheriff court which has no supervisory jurisdiction, and (b) the position in England should be adopted in Scotland.

Held that (1) the very general statutory duty contained in sec 57(2) of the Scotland Act 1998 and sec 6 of the Human Rights Act 1998 was not the sort of precise statutory duty which could be enforced under sec 45 of the 1998 Act (pp 210C–D, 225D); (2) applications to the supervisory jurisdiction of the Court of Session are “civil proceedings” within the meaning of sec 21 of the 1947 Act (pp 211E–212A, 218F, 225G–226E); (3) there was no doubt that the Scottish Ministers were subject to the rule of law but the question of what in this case was the law was purely a matter of construction of the relevant statutory provisions (pp 231C, 225A–B); (4) in interpreting the words “civil proceedings” one should not read in by implication an exclusion analogous to the express English exclusion of “proceedings on the Crown Side of the King's Bench Division” (pp 214A–216B, 219D–E, 227B); (5) if it was thought desirable to exclude judicial review from being regarded as “civil proceedings” this could only be done by legislation (pp 216B, 227E); (6) the exclusion of inter dict and specific performance in proceedings against the Crown would not deprive litigants of an alternative remedy: a variety of remedies were available to the petitioner including the internal prison complaint procedure, judicial review of the ultimate decision of the governor under that procedure, declarator and damages, declarator and undertaking by the Crown that it would comply with the declarator (pp 213G, 221D–H); and reclaiming motion refused.

Opinion reserved as to the competency of the petition in respect that there were questions as to whether (1) the petitioner could be said to have exhausted his statutory remedies under the prison complaint procedure, and (2) the petition, which was based solely on an alleged duty not to act in any way incompatible with Convention rights, was truly an application to the supervisory jurisdiction of the court (pp 208H–209B, 218B).

Opinion reserved as to the competency of an interim order for specific performance in relation to alleged breaches of human rights (pp 222D, 222G–H).

Observed (per Lord Marnoch) that the Scotland Act 1998 and the Human Rights Act 1998 did not have a general effect on the interpretation of prior legislation (p 213C–F).

Observed (per Lord Hardie) that it was unsatisfactory for the Advocate General not to appear in the Court of Session is cases she considered to be of major constitutional importance, but intervene in proceedings before the House of Lords or Privy Council if the decision in the Court of Session did not meet with her approval (p 217F–I).

Scott Davidson brought a petition under the judicial review procedure for declarator and for an order for his transfer to other conditions of detention. He moved for an interim order for such transfer. On 26 October 2001 the Lord Ordinary (Johnston) refused the motion. The petitioner reclaimed. On 31 October 2001 an Extra Division of the Court appointed the case to the summar roll for a hearing on the matter of competency.

The arguments of the parties are sufficiently set forth in the opinion of their Lordships.

Cases referred to:

Adams v NaylorELR [1946] AC 543

Aksoy v TurkeyHRC (1996) 23 EHRR 553

Ayr Town Council v Secretary of State for ScotlandSC1965 SC 394

Bell v Secretary of State for Scotland 1993 SLT 519

BMA v Greater Glasgow Health BoardSC 1989 SC (HL) 65

Carlton Hotel Co v Lord AdvocateENR 1921 SC 237

Conway a RimmerELR [1968] AC 910

Forbes v UnderwoodUNK 1886 13 R 465

Graham v Robert Younger LtdSC 1955 SC 38

Highland and Universal Properties Limited v Safeway Properties LtdSC (no 2) 2000 SC 297

Income Tax (Commissioner of ) v PemselELR [1891] AC 531

M v Home OfficeELR [1994] AC 377

McCartan Turkington Breen v Times Newspapers LtdELR[2001] 2 AC 277

McDonald v Secretary of State for ScotlandSC 1994 SC 234

MacGregor v Lord AdvocateENR 1921 SC 847

Montgomery v HM AdvocateSC 2001 SC(PC) 1

R v Home Department ex parte HerbageELR [1987] QB 872

R v Home Secretary ex parte PiersonELR [1998] AC 539

Russell v Magistrates of HamiltonUNK (1897) 25 R 350

Somerville v Lord Advocate (1893) 20R 105

Vilvarajah v United KingdomHRC (1991) 14 EHRR 248

West v Secretary of State for ScotlandSC 1992 SC 385

Textbooks etc referred to:

Bennion, Statutory Interpretation (Third Edition) pp 248, 390–2, 532

Clyde and Edwards, Judicial Review para 23.37

Craies, Statute Law (Ninth Edition), p 126

Fraser, Constitutional Law (Second Edition) p 165

“Administrative Law”, Stair Memorial Encyclopaedia, para 4.

The cause called before an Extra Division, comprising Lord Marnoch, Lord Hardie and Lord Weir for a hearing on the summar roll. The court allowed the petitioner to amend the petition by inserting certain declarators sought and pleas in law.

At advising, on 18 December 2001—

LORD MARNOCH—[1] This is a reclaiming motion against an interlocutor pronounced by the Lord Ordinary (Lord Johnston) on 26 October 2001 in so far as it refused the petitioner's motion for an interim order ordaining the Scottish Ministers to secure the transfer of the petitioner (then a prisoner in HM Prison, Barlinnie, Glasgow) to conditions of detention compliant with art 3 of the European Convention on Human Rights. The Lord Ordinary refused to grant that order on the grounds (1) that it was incompetent under sec 21 of the Crown Proceedings Act 1947, (2) that he was not satisfied that the petitioner's pleadings disclosed a prima facie case and (3) that the balance of convenience was, in any event, against the making of the order sought. On 31 October 2001, in circumstances which are not entirely clear, an Extra Division of the Court appointed the case to the summar roll “for hearing on the matter of competency” but, before us, it became rapidly apparent that, without entering into the other matters covered by the Lord Ordinary's opinion, it would be impossible to allow the reclaiming motion, whatever its merits might be on that aspect of the case. In these circumstances the petitioner was allowed to amend the petition,inter alia by inserting as the first and second declarators sought: “(a) declarator that an order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention (whether final or interim) may competently be made in proceedings by way of application to the supervisory jurisdiction of the Court of Session under Rule of Court 58, and is not precluded by operation of section 21 of the Crown Proceedings Act 1947; (b) declarator that an order ordaining the Scottish Minister to transfer the petitioner to other conditions of detention under section 45(b) of the Court of Session Act 1988 (whether final or interim) may competently be made, and is not precluded by the operation of section 21 of the Crown Proceedings Act 1947;” and further, by adding as new first and second pleas in law: “1. An order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention (whether final or interim) being competent in proceedings by way of application to the supervisory jurisdiction of the Court of Session under Rule of Court 58 and not being precluded by operation of section 21 of the Crown Proceedings Act 1947, declarator should be pronounced as craved; 2. An order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention under section 45(b) of the Court of Session Act 1988 (whether interim or final) being competent and not precluded by the operation of section 21 of the Crown Proceedings Act 1947, declarator should be pronounced as craved.” Since it was apparent that the Lord Ordinary would have repelled these new pleas in law the reclaiming motion was allowed to proceed as directed towards them alone. Even so, I am conscious that the new declarators sought come close to being bare declarators of general law.

[2] By way of preliminaries, it is also appropriate to note that there are, as I see it, at least two other...

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