Scott Davidson (ap) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Kirkwood,Lord Philip |
| Date | 11 September 2002 |
| Docket Number | P566/02 |
| Court | Court of Session |
| Published date | 11 September 2002 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Kirkwood Lord Philip
| P566/02 OPINION of THE LORD JUSTICE CLERK in PETITION to the nobile officium of the Court of Session of SCOTT DAVIDSON (Assisted Person) Petitioner; against THE SCOTTISH MINISTERS Respondents: _______ |
Act: O'Neill QC, Collins; Drummond Miller, WS
Alt: Brailsford QC, Mure; Richard Henderson, Solicitor to the Scottish Ministers
11 September 2002
Introduction
[1]This is a petition to the nobile 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 H.M. 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 article 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 article 3; (2) an order ordaining the Scottish Ministers to secure their transfer to conditions that were compliant with article 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 for interim 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 section 21 of the Crown Proceedings Act 1947 (the 1947 Act), and (b) that such an order under section 45(b) of the Court of Session Act 1988 (the 1988 Act) could competently be made and was not precluded by section 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, 2002 SLT 420).
[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 officium for 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 section 21 of the Crown Proceedings Act 1947 as regards the remedies which might be available to the courts in Scotland against the Scottish Ministers" (stat. XI); and that subsequently he sat as a judge in the reclaiming motion in which "the correctness of his view as Lord Advocate as to the effect of the [1947 Act] was challenged" (stat. XIII). In the prayer of the petition, the petitioner craves the court, inter alia,
"to exercise the nobile officium of the Court of Session and hold that the interlocutor of the Extra Division of 18 December 2001 refusing the petitioner's reclaiming motion et separatim the interlocutor of the Extra Division of the 20th December 2001 refusing the petitioner leave to appeal to the House of Lords are each vitiated for apparent bias and want of objective impartiality on the part of the court by reason of the participation therein of Lord Hardie as condescended upon; to set aside the said interlocutor or interlocutors; to grant the petitioner leave to appeal to the House of Lords against the interlocutor of the Extra Division of 18 December 2001 ... or to do further or otherwise as to your Lordships shall seem proper."
[9]This petition raises questions as to the principles of natural justice in the common law of Scotland and the right to a fair trial under article 6 of the Convention. It is agreed that if the petition is well founded, the court is entitled to exercise its nobile officium to set aside the interlocutors complained of (cf. Hoekstra v HM Adv (No 2), 2000 JC 391, Lord Justice General Rodger at paras. [13] - [14]).
The legislation
[10]Section 44 of the Scotland Act 1998 provides inter alia as follows:
"44.-(1) There shall be a Scottish Executive, whose members shall be -
(a)the First Minister
(b)such Ministers as the First Minister may appoint under section 47, and
- the Lord Advocate and the Solicitor General for Scotland.
(2)The members of the Scottish Executive are referred to collectively as the Scottish Ministers ... "
Section 21 of the Crown Proceedings Act 1947 provides inter alia as follows:
"21.-(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
Provided that:-
(a)where in any proceedings against the Crown any such relief is
sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; ...
- The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown."
In the construction of section 21 two definitions are important. Section 38(2) provides that
"Civil proceedings" includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King's Bench Division."
In its application to Scotland, the reference to the High Court is to be read as a reference to the Court of Session (s. 43(a)).
"Officer," in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provisions) includes a Minister of the Crown and a member of the Scottish Executive ... "
In this definition the words "and a member of the Scottish Executive" were added by the Scotland Act 1998 (s. 125(1); Sched. 8, para. 7(2)(c)).
The central question in the reclaiming motion
[11]The central question in the reclaiming motion was whether, in view of section 21 of the Crown Proceedings Act 1947 (supra), a Scottish court could grant an order for specific performance, whether interim or final, against the Scottish Ministers or could merely grant an order declaratory of the parties' rights (ibid., Lord Marnoch at para. [6]; Lord Hardie at para. [6]; Lord Weir at para. [2]).
[12]Counsel for the petitioner submitted that an application to the supervisory jurisdiction of this court did not constitute "civil proceedings" in section 21. If it did not, the Court was free to pronounce the order for specific performance that the petitioner was then seeking. That submission rested on an interpretation of the definition of "civil proceedings" in section 38(2) (supra); an attempted analogy with the effect of section 21 in England; and the drawing of inferences from the provisions of section 44 relating to proceedings in the sheriff court. There was also an excursus on human rights. I need not go into the details.
[13]One of the difficulties in the way of that submission was the decision of the Second Division in McDonald v Secretary of State for Scotland (1994 SC 234). That was an action by a prisoner against the statutory predecessor of the Scottish Ministers for damages and interdict in respect of allegedly illegal personal searches. The Second Division held that the remedies of interdict and interim interdict were not available against the Secretary of State, at any rate in actions ex delicto. In that case Lord Justice Clerk Ross (ibid., at p. 243H-I) and Lord Sutherland (ibid., at p. 248F-G) remarked obiter on the apparent difficulty in any submission that an application to the...
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