House of Lords portcullis
House of Lords
Session 2003 - 04
Publications on the Internet

Judgments - Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)


SESSION 2003-04
[2004] UKHL 34




Davidson (AP) (Original Respondent and Cross-appellant)


Scottish Ministers (Original Appellants and Cross-respondents)



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) v. Scottish Ministers (Original Appellants and Cross-respondents)

[2004] UKHL 34


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. 2044):

    "I would remind your Lordships that Scottish Ministers will be part of the Crown and will be protected by the provisions of the Crown Proceedings Act 1947, which at present ensures that the Crown cannot be subject to such orders [ie. orders for specific performance]. Instead, all that the courts can do is to issue a declarator."

The second was on 2 November 1998 (HL Hansard, vol. 594, col. 105):

    "The answer to it is the Crown Proceedings Act 1947, which prevents the court from making an order for specific performance against the Crown. The Scottish Executive will be part of the Crown."

Whether the court could order the Scottish Executive to transfer Mr Davidson was, it will be recalled, the very issue which the Lord Ordinary and the Extra Division were called upon to decide.

    9.  Mr Brailsford submitted that Lord Hardie's statements to the House were a bona fide expression of his personal opinion, reflecting the law of Scotland as it was then settled. This may be readily accepted. In McDonald v Secretary of State for Scotland 1994 SC 234 a claim for interdict against the Secretary of State as representative of the Crown had been held to be incompetent. There is no reason to doubt that Lord Hardie's opinion was orthodox, and when the point comes to be finally decided it may be held to be correct. The question is not, however, whether Lord Hardie's statements were reasonable and proper but whether the fair-minded and informed observer, having considered them and the circumstances in which they were made, would conclude that there was a real possibility that he was biased in the sense that, having made these statements, he would be unable to bring an objective and undistorted judgment to bear on the issue raised by Mr Davidson in his reclaiming motion.

    10.  Rarely, if ever, in the absence of injudicious or intemperate behaviour, can a judge's previous activity as such give rise to an appearance of bias. Over time, of course, judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular judge is likely to react to a given problem. Since judges are not automata this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindness; and there are few experienced judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice, as the cases show, problems of apparent bias do not arise where a judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system, but problems are liable to arise where the exercise of judicial functions is preceded by the exercise of legislative functions.

    11.  In Procola v Luxembourg (1995) 22 EHRR 193, a dairy association complained of four milk quota orders made with retrospective effect pursuant to a domestic regulation and a domestic statute. The regulation had been submitted in draft to the Conseil d'Etat, which had advised that a statute was necessary to give retrospective effect to the proposed new rules and had drafted a single clause bill which had been enacted as the statute. The association's challenge to the four orders, based on their retrospective effect among other things, came before the Judicial Committee of the Conseil d'Etat, four of whose five members had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and framing the bill. The association's challenge was dismissed, and it complained that the Judicial Committee was not an independent and impartial tribunal and that its rights under article 6 of the European Convention had been violated. A majority of the Commission held that there had been no violation of article 6, but a minority dissented, holding (page 203) that, having regard to the importance of appearances and the increased concern of the public that the fair administration of justice should be guaranteed, the association could legitimately fear that its case would not be heard by an independent and impartial tribunal. The Court unanimously upheld this dissent. In paragraphs 44-45 of its judgment it said:

    "44.  The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity.

    45.  The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint."

    12.  Article 6 of the European Convention was again invoked in McGonnell v United Kingdom (2000) 30 EHRR 289. The applicant in that case applied to the Island Development Committee of Guernsey for permission to develop his property and was refused because the proposed development did not conform to a detailed development plan. That plan had been adopted some years before by the States of Deliberation, over which the Deputy Bailiff had presided. The applicant appealed to the Royal Court against the refusal of permission and the appeal was heard by the Bailiff, who had been the Deputy Bailiff when the plan had been adopted, and seven Jurats. The appeal was unanimously dismissed. The Commission held, by 25 votes to 5, that article 6 had been violated, ruling (pp 300-301):

    "61.  The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature — as President of the States of Deliberation — and, in addition, a senior member of the executive — as titular head of the administration presiding over a number of important committees. It is true, as the Government points out, that the Bailiff's other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case. The Commission finds, taking into account the Bailiff's roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt."

The Court was unanimously of the same opinion (pp 307-308):

    "55.  The participation of the Bailiff in the present case shows certain similarities with the position of the members of the Conseil d'Etat in the case of Procola. First, in neither case was any doubt expressed in the domestic proceedings as to the role of the impugned organ. Secondly, and more particularly, in both cases a member, or members, of the deciding tribunal had been actively and formally involved in the preparatory stages of the regulation at issue. As the Court has noted above, the Bailiff's non-judicial constitutional functions cannot be accepted as being merely ceremonial. With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In the present case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting and, as the Bailiff stated in the Bordeaux Vineries case, there was no obligation on him to exercise his casting vote against a proposition before the States where that vote impinged on his conscience. Moreover, the States of Deliberation in Guernsey was the body which passed the regulations at issue. It can thus be seen to have had a more direct involvement with them than had the advisory panel of the Conseil d'Etat in the case of Procola with the regulations in that case.

    56.  The Court also notes that in the case of De Haan, the judge who presided over the Appeals Tribunal was called upon to decide upon an objection for which he himself was responsible. In that case, notwithstanding an absence of prejudice or bias on the part of the judge, the Court found that the applicant's fears as to the judge's participation were objectively justified.

    57.  The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint."

In a short separate opinion Sir John Laws (p 309) based his concurrence solely on the coincidence of the Bailiff's presidency over the States in 1990 and over the Royal Court in 1995.

    13.  It was at once recognised that the decision in McGonnell threw doubt on the Lord Chancellor's historic dual role as both legislator and judge. Giving his written answer to a parliamentary question on 23 February 2000 (HL Hansard, vol. 610, WA 33), Lord Irvine of Lairg LC declined to step down as head of the judiciary and distinguished his role from that of the Bailiff of Guernsey, but added:

    "The Lord Chancellor would never sit in any case concerning legislation in the passage of which he had been directly involved nor in any case where the interests of the executive were directly engaged."

This response was consistent with a response made by the Lords of Appeal in Ordinary to an invitation to publish a statement of the principles they intended to observe when participating in debates and votes in the House of Lords and when considering their eligibility to sit on related cases. On 22 June 2000, in the course of the Law Lords' collective reply, they stated (HL Hansard, vol. 614, col. 419):

    "As full members of the House of Lords the Lords of Appeal in Ordinary have a right to participate in the business of the House. However, mindful of their judicial role they consider themselves bound by two general principles when deciding whether to participate in a particular matter, or to vote; ……………. secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House."

    14.  After the conclusion of argument, the attention of the House was drawn to the recent decision of the Strasbourg Court in Pabla Ky v Finland Appn no 47221/99, 22 June 2004, unreported). In that case a member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence. The Strasbourg Court rejected that complaint, and also found no objective justification for the applicant's fear as to a lack of independence and impartiality of the Court of Appeal resulting from the dual role of the expert member. In distinguishing Procola and McGonnell, the Court pointed out (paragraph 34) that the expert member "had not exercised any prior legislative, executive or advisory function in respect of the subject-matter or legal issues before the Court of Appeal for decision in the applicant's appeal".

    15.  In Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 objection was taken to the participation of a judge in a High Court decision on the constitutionality of a Commonwealth statute. The ground of objection was that the judge, as counsel, had given an opinion on the point. The judge concluded that he should not disqualify himself. He held (in para 24 of his judgment):

    "24.  I do not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, will ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test. Mason J in the passage I have already quoted [Re JRL; Ex p CJL (1986) 161 CLR 342, 352] points out that the making of a previous decision by a judge on issues of fact and law, although perhaps generating an expectation of a particular outcome, does not mean that the judge will not be impartial and unprejudiced in the relevant sense."

He also held, in para 33:

    "33.  Some members of this court have come to it directly from a career in politics and in government. Inevitably, in Cabinet and in the Party room, they must have had a very close association with members of the government whose legislation they have had from time to time to interpret. Sometimes the legislation may be in implementation of long-standing policy to which the former politician has subscribed and has perhaps even advocated. A particular association of itself, and even a current, proper one which observes the punctiliousness required in respect of a case and issues actually before, or which may be before, the court should not ordinarily give rise to a reasonable apprehension of bias."

But, relevantly to the present case, he also said:

    "29.  My position is, I think, quite different from that of a person who, before coming to the bench, has been directly involved in the preparation of legislation that has to be construed by the court, and who has taken active steps as principal law officer of the Commonwealth to seek to ensure the passage of a bill and to propound to the Governor-General the Senate's failure to pass it as a basis for a double dissolution. These were some of the circumstances that led Murphy J to stand aside in Victoria v Commonwealth and Connor [(1975) 134 CLR 81]. There were other closely related steps taken by his Honour there when he was the Attorney-General concerning that Act."

    16.  Counsel for the Scottish Ministers drew attention to some observations of Rehnquist J in Laird v Tatum 409 US 824 (1972), 835, para 6, when denying a motion to recuse himself on the ground of his previous activity as an expert witness and an Assistant Attorney General, but little assistance is to be gained from this authority, first, because the matter was governed by statute and, secondly, because the judgment was not directed to the appearance of bias. More pertinent is the decision of the Privy Council in Panton and Panton v The Minister of Finance and the Attorney General [2001] UKPC 33. The appellants had challenged the constitutionality of a Jamaican statute and had failed before the Constitutional Court and the Court of Appeal. Rattray P had presided in the Court of Appeal, and after the hearing it had come to the appellants' notice that he had, as Attorney General, certified that in his opinion the statute which the appellants sought to challenge was not contrary to the Constitution. It was a pro forma certificate given before the statute was presented to the Governor-General for the royal assent. It appears to have been a formal step by the Attorney General and the Board observed (para 9):

    "It is not obvious that the Attorney General would himself have applied his mind to every aspect of the Act and examined its constitutionality in every detail. Doubtless members of his office would advise him on the matter and from all that appears he may well have relied on his departmental advisors in putting his signature to the certificate. It is a statement of his opinion. But it is not evident that it took any account of the particular issue which has now been raised by the appellants."

On these facts the Board found no appearance of bias. Nor did it in the fact that the President had, when the statute was passed, been a Member of Parliament and Minister of Justice as well as Attorney General. The Board said (paras 13-14):

    "13.  But there is nothing to show that he was actively engaged in the promotion of the Bill, indeed there is nothing to show that he took any part in the process of its passing at all. He may well have voted for it as a member of the government whose Bill it was but there is nothing on which the appellants found as demonstrating any particular participation in the legislative process. Had he introduced the Bill, or campaigned for it, been responsible for securing its passage through Parliament, or adopted it as a particular cause which he was determined to promote, there might have been some material on which the appellants could have founded an argument. But, apart from the matter of the certificate, they look only to the fact of his membership of the government and the Parliament when the Act was passed. That cannot be sufficient to constitute a disqualification from his sitting as a judge on the issue of constitutionality which has now arisen. His past political history is, as was pointed out in the passage in Locabail ([2000] QB 451, 480, para 25) quoted earlier, not ordinarily a ground for disqualification.

    14.  The absence of any significant role played by Mr Rattray in the passing of the legislation is a point of some importance. . . . "