House of Lords
|Session 2003 - 04
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Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Davidson (AP) (Original Respondent and Cross-appellant)
Scottish Ministers (Original Appellants and Cross-respondents)
THURSDAY 15 JULY 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Cullen of Whitekirk
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)
 UKHL 34
LORD BINGHAM OF CORNHILL
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:
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  QB 451, paragraph 16), the Scottish test has come to be accepted. In Porter v Magill  UKHL 67,  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:
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):
The second was on 2 November 1998 (HL Hansard, vol. 594, col. 105):
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:
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):
The Court was unanimously of the same opinion (pp 307-308):
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:
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):
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):
He also held, in para 33:
But, relevantly to the present case, he also said:
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  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):
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):