Scott and Davidson v Scottish Ministers (No 1)
| Jurisdiction | Scotland |
| Judgment Date | 18 December 2001 |
| Date | 18 December 2001 |
| Docket Number | No 19 |
| Court | Court of Session (Inner House - Extra Division) |
Court and Reference:Inner House, Court of Session ; P1199/01
Lords Marnoch, Hardie and Weir
Appearances:O'Neill QC and Collins (instructed by Drummond Miller) for the Petitioners; Brailsford QC and Mure (instructed by the Solicitor to the Scottish Executive) for the Respondents
Whether an interim order should be granted in judicial review proceedings alleging that the conditions in prison in Scotland breached Art 3 European Convention.
The applicants, a remand prisoner and a serving prisoner at HMP Barlinnie, challenged the conditions in the prison, arguing that they breached Art 3 European Convention (inhuman and degrading treatment) and sought interim orders that they be moved pending the resolution of their applications. The Scottish Ministers contested the factual basis for the allegations; further, they argued that s. 21 Crown Proceedings Act 1947 prevented an order of specific performance being granted against the Crown and that was in effect what was sought. The judge accepted the arguments of the Ministers and also ruled that there were factual disputes which prevented an interim order: [2002] Prison Law Reports 58. The applicants appealed.
Lord Marnoch
1. [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 HMP 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 s. 21 of the Crown Proceedings Act 1947, (2) that he was not satisfied that the petitioner's pleadings disclosed aprima 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 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 s. 21 of the Crown Proceedings Act 1947;
(b) declarator that an order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention under s. 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 s. 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 s. 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 s. 45(b) of the Court of Session Act 1988 (whether interim or final) being competent and not precluded by the operation of s. 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. [2] By way of preliminaries, it is also appropriate to note that there are, as I see it, at least 2 other aspects of doubtful competency arising out of the fact that in this case the petitioner chose to eschew recourse to the procedure for complaints by prisoners set out in Rules 104et seq of the Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (as amended). These culminate with referral of a complaint, if need be, to the Prison Governor. Had this procedure been followed there is, I think, little doubt that the Governor's decision, if adverse to the petitioner, would have been subject to judicial review. Instead, however, what happened was that the solicitors for the petitioner wrote direct to the Prison Governor on 11 September 2001 complaining of the prison conditions and formally requesting a transfer to "conditions which are compatible with his [the petitioner's] Art 3 Convention rights", this being, of course, a reference to the rights conferred by Art 3 of the European Convention on Human Rights. The letter is produced as No 6/1 of process and we were advised by counsel appearing for the Scottish Ministers that a reply was still being drafted when the raising of the present petition was intimated to the Scottish Ministers on 23 October 2001. A hearing was then arranged for either 25 or 26 October 2001 when, after pronouncing a first order for intimation and service, the Lord Ordinary refused the interim order referred to above. A reclaiming motion having been marked, no Answers to the petition have been lodged, as yet, by the Scottish Ministers. Nonetheless, they were represented both before the Lord Ordinary and before us, and I will hereinafter refer to them as "the respondents".
3. [3] For present purposes what emerges from all this is that the petition before us is directed against the Scottish Ministers by virtue of the vesting in them of "the general superintendence of prisons" under s. 3(1) of the Prisons (Scotland) Act 1989 and is based solely on an alleged breach by them of their duty under both s. 57(2) of the Scotland Act 1998 and s. 6(1) of the Human Rights Act 1998 not to act in a manner incompatible with any of the "Convention rights" including Art 3. At least that was how the matter was explained to us at some length by junior counsel for the reclaimer and, although at a very late stage in the proceedings senior counsel sought in some way to disown or modify that explanation, it provides, I believe, the only possible rationale for the whole layout and substance of the petition including, in particular, the substance of the Declarators sought and the form and substance of the pleas-in-law tabled.
4. [4] In the situation as above described counsel for the respondents recognised that there was a serious question as to whether the petitioner could be said to have exhausted his statutory remedies before having recourse to the present proceedings, and a further question, no less serious, whether the petition in its present form was truly an application to the supervisory jurisdiction of the court as that was defined in West v Secretary of State for Scotland 1992 SC 385. On the latter question counsel reminded the court of a passage at the bottom of p399 of the Session Cases Report where the Lord President (Hope) says this:
"The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary to enquire whether the decision of the inferior body or tribunal is administrative in character. The essential point is that a decision-making function has been entrusted to that body or tribunal which it can be compelled by the court to perform. As counsel for the respondent pointed out, the tripartite relationship in these arrangements is significant. The essential feature of all these cases is the conferring, whether by statute or private contract, of a decision-making power or duty on a third party to whom the taking of the decision is entrusted but whose manner of decision-making may be controlled by the court."
5. [5] Nonetheless, counsel for the respondents were unable to say whether, in any Answers lodged, a plea to the competency of the proceedings would actually be taken and, since the matter may not be entirely free from doubt, I do not in this instance consider it appropriate that the court shouldex proprio motu require the competency of the present proceedings to be fully argued and decided. I wish, however, most distinctly to reserve my own opinion on all three aspects of the doubtful competency of this petition. After all, if the present petitioner were correct in his approach, it would follow that any alleged breach of Convention rights wouldipso facto be susceptible to proceedings by way of judicial review. I recognise, of course, that judicial review is, at base, only a procedure but it is nonetheless a procedure which gives litigants distinct advantages over other litigants having recourse to the court in terms of time-tabling and which confers a measure of flexibility not thought appropriate for ordinary actions. In any event, and whatever else, the discussion on this aspect of the case serves to emphasise that the substantive issues which are claimed to be susceptible to judicial review can vary very considerably as regards both their form and content. In particular, so far as the present petition is concerned, I am far from clear that it is, in substance, an application to the "supervisory jurisdiction of the Court of Session" if that jurisdiction be subjected to the full rigour of the analysis set out in West,cit sup. With some hesitation, however, and in order, not least, to address the argument advanced on behalf of the reclaimer in...
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