WILLIAM LAURISTON WEST Petitioner (Reclaimer) against SCOTTISH PRISON SERVICE Respondents

JurisdictionScotland
CourtCourt of Session (Inner House - First Division)
Judgment Date23 April 1992
Date23 April 1992
Docket NumberNo. 33.

FIRST DIVISION.

Lord Weir.

No. 33.
WEST
and
SECRETARY OF STATE FOR SCOTLAND

Administrative law—Practice—Judicial review—Competency—Prison officer refused discretionary reimbursement of removal expenses—Scope of supervisory jurisdiction of Court of Session—Whether exercise of discretion by Scottish Prison Service open to judicial review—Whether criteria for exercise of supervisory jurisdiction included requirement that "public law" element be present—Rules of Court 1965, rule 260B.1

William Lauriston West presented a petition for judicial review of the decision of his employers, the Scottish Prison Service, not to reimburse his removal expenses following his compulsory permanent transfer from H.M. Young Offenders Institution, Polmont, to H.M. Prison, Edinburgh. The Secretary of State for Scotland was called as respondent in the petition.

The petition and answers thereto called before the Lord Ordinary (Weir) for a first hearing thereon.

The petitioner, a serving prison officer, was transferred from a young offenders institution to a prison. Under his conditions of service with his employers, the Scottish Prison Service, he was regarded as "mobile staff" and liable to be transferred compulsorily to any prison service establishment in Scotland. Provision was made in the conditions of service for the reimbursement to staff of inter alia removal expenses. As a result of his transfer, the petitioner required to move house but was thereafter informed by his employers that his removal expenses would not be reimbursed. He then presented a petition to the Court of Session for judicial review of the prison service's decision, on the ground that the refusal was an unreasonable exercise of its discretion, for reduction of its decision, and declarator that he was entitled to reimbursement of his removal expenses and damages. The respondent, the Secretary of State for Scotland, lodged answers on behalf of the prison service, arguing that the petition was incompetent and irrelevant. Before the Lord Ordinary (Weir), the respondent challenged the petition on competency only. The Lord Ordinary sustained the respondent's plea and dismissed the petition, holding that the dispute arose from rights and duties of a contractual nature, enforceable at ordinary law, which were indistinguishable from those of a person holding a contract of employment with a private employer and therefore not amenable to judicial review. The petitioner thereafter reclaimed to the Inner House of the Court of Session.

Held (aff. judgment of Lord Weir) (1) that the respondent's plea to the competency raised an important question about the extent of the jurisdiction of the court in proceedings for judicial review and that it was now necessary for guidance to be given as to the scope of this procedure; (2) that the competency of applications to the supervisory jurisdiction was to be determined by reference to the following propositions: (a) that the Court of Session had power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions were taken by any person or body to whom a jurisdiction, power or authority had been delegated or entrusted by statute, agreement or other instrument; (b) that the sole purpose for which the supervisory jurisdiction might be exercised was to ensure that the person or body did not exceed or abuse its jurisdiction, power or authority or fail to do what that required; (c) that the competency of the application did not depend upon any distinction between private law and public law, nor was it confined to those cases which English law had accepted as being amenable to judicial review, nor was it correct in

regard to issues about competency to describe judicial review as a public remedy; (3) further, by way of explanation, (a) that judicial review was available, not to review the merits of a decision, nor for the court to substitute its own opinion, but to ensure that a decision-maker did not exceed or abuse his powers or fail to perform his duty; (b) that "jurisdiction", meaning "power to decide", best described the nature of the power, duty or authority which was amenable to the supervisory jurisdiction; (c) that there was no substantial difference between English law and Scots law as to the grounds on which the process of decision-making would be open to review; (d) that cases in which the exercise of the supervisory jurisdiction was appropriate involved not contractual rights and obligations but a tri-partite relationship, between the person or body to whom the jurisdiction had been delegated, the person or body by whom it was delegated, and the persons in respect of whom the jurisdiction was to be exercised; and (4) that, accordingly, on the facts of the present case, as there was no suggestion that the petitioner's concern was with the exercise of a jurisdiction, power or authority conferred on some third party who could be identified separately from his employer, there was an absence of any feature to place the case in any category other than that of a private, employee-employer dispute about his conditions of employment; and reclaiming motion refused.

Authorities considered: Connor v. Strathclyde R.CUNK. 1986 S.L.T. 530 and Safeway Food Stores Ltd. v. Scottish Provident InstitutionUNK 1989 S.L.T. 131overruled.

At advising, on 22nd March 1991, the Lord Ordinary dismissedthe petition as being incompetent.

LORD WEIR'S Opinion.—The petitioner has been a prison officer for a number of years. On 17th March 1989 he was given a compulsory permanent transfer from H.M. Young Offenders Institution, Polmont, to H.M. Prison, Edinburgh. At that time he was living at a house near his place of work and on 7th April 1989 he applied for permission to live outwith official quarters at his new posting. The petitioner avers that permission was granted but that shortly before he was due to take up his post, he was informed by the respondents that he would not be reimbursed the expenses of removal from his old to his new house. There is a dispute as to what was the nature of the understanding between the petitioner and the respondents regarding permission to move. What is not in dispute is that the petitioner did move house and he claims that the cost of moving amounted to £10,000. The respondents maintain that they had a discretion in all cases to decide whether the distance between the old and the new stations justified the payment of expenses.

The decision to refuse reimbursement of expenses is challenged in these proceedings for judicial review on grounds which are familiar in modern administrative law. The petitioner avers that in reaching their decision the respondents exercised their discretion unreasonably and that he had been denied a legitimate expectation that he would obtain reimbursement of the cost of removal at public expense. He further contends that the discretion was unreasonably exercised on account of a failure by the respondents to apply their policy fairly and consistently.

The respondents seek dismissal of the petition on the ground of both competency and relevancy. By agreement, the argument before me was confined to the matter of competency upon the understanding that should the plea to competency be repelled, it would then be open to the respondents to argue their plea to relevancy. Counsel for both parties were agreed that the plea of competency raised sharply an important question concerning the extent of the court's jurisdiction in judicial review.

Before giving consideration to the arguments, it is necessary to explain more fully the nature of the relationship between the petitioner and the respondents.

The petitioner was appointed as an established prison officer in the Scottish Home and Health Department (which is the government department responsible for the Scottish Prison Service) by letter dated 13th December 1982. Paragraph 3 of that letter states: "The following paragraphs and the schedule attached to this letter summarise your main conditions of service as these apply at present. Any significant changes will be notified by means of departmental instructions. Details of conditions of service applicable to your appointment are to be found in the Staff Guide and Reference Book, a copy of which will be handed to you when you take up duty at your joining establishment." Paragraph 1 of the schedule states inter alia as follows: "The following terms and conditions also apply to a prison officer's appointment in the Civil Service. In accordance with your letter of appointment you have been appointed as a Prison Officer in the Scottish Prison Service. You will understand that, in consequence of the constitutional position of the Crown, the Crown has the right to change its employees' conditions of service at any time, and the Crown's employees hold their appointments at the pleasure of the Crown."

In terms of their conditions of service all prison officers were designed as mobile staff and were liable to be transferred to any prison service establishment in Scotland. Prison officers who were transferred were entitled to be reimbursed certain expenses incurred as a result of the transfer. Paragraph 80 of what is called "The Red Book" states: "Not all types of transfer qualify for reimbursement of home removal expenses and it is a matter for Personnel Services Division's discretion in all cases whether the distance between the old and new stations justifies the payment of expenses. Account will also be taken of the extent to which the distance from the officer's home to the new office exceeds that to the old office, whether the officer's home can be regarded as within the dormitory area for the new office, whether reasonable transport facilities are available and whether the transfer involves a change in the officer's pay. An officer who is in doubt about the application of the transfer rules should seek written advice before committing himself in any way. Claims for...

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