Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)
17. The judgment of the Board in Panton makes clear that it is difficult, if not impossible, to lay down hard-edged rules to distinguish a case where apparent bias may be found from one where it may not. Much will turn on the facts of the particular case. But the judgment also holds, consistently with authority cited above, that a risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process. Since in the present case there is no issue as to the facts, no issue as to the legal test to be applied and (in my opinion) no significant misdirection by any member of the Second Division, I should for my part be very reluctant to disturb its unanimous decision. I am however of the clear opinion that its conclusion was justified by the nature and extent of Lord Hardie's involvement in the passage of the Scotland Act. The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament.
18. In reaching this opinion I do not overlook or disparage the significance of the judicial oath. The Lord Justice Clerk, in para 33 of his judgment, went too far when describing this as "beside the point". Primarily, I agree, the judicial oath is relevant to a complaint of actual bias, with which this case is not concerned. But the fair-minded and informed observer, who is "neither complacent nor unduly sensitive or suspicious" (Johnson v Johnson (2000) 201 CLR 488, 509, para 53), would be aware in general terms that judges take an oath and would accept that judges try to live up to the high standard which it imposes. Such an observer would, I think, regard the judicial oath as "an important protection" (as Lord Reed called it in (Starrs v Ruxton 2000 JC 208, 253) but not as "a sufficient guarantee to exclude all legitimate doubt" (ibid.)
19. Where a judge is subject to a disqualifying interest of any kind ("actual bias"), this is almost always recognised when the judge first appreciates the substance of the case which has been assigned. The procedure is then quite clear: the judge should, without more, stand down from the case. It is rare in practice for difficulties to arise. Apparent bias may raise more difficult problems. It is not unusual for a judge, at the outset of a hearing, to mention a previous activity or association which could not, properly understood, form the basis of any reasonable apprehension of lack of impartiality. Provided it is not carried to excess, this practice is not to be discouraged, since it may obviate the risk of misunderstanding, misrepresentation or misreporting after the hearing. It is also routine for judges, before or at the outset of a hearing, to disclose a previous activity or association which would or might provide the basis for a reasonable apprehension of lack of impartiality. It is very important that proper disclosure should be made in such cases, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment. When such disclosure is made, it is unusual for an objection to be taken. The ordinary course is exemplified in the opinion of Lord Mackay of Clashfern in In re S (Minors) (Care Order: Implementation of Care Plan)  UKHL 10,  2 AC 291, 327, para 108:
There are of course a number of entirely honourable reasons why a judge may not make disclosure in a case which appears to call for it, among them forgetfulness, failure to recognise the relevance of the previous involvement to the current issue or failure to appreciate how the matter might appear to a fair-minded and informed observer who has considered the facts but lacks the detailed knowledge and self-knowledge of the judge. However understandable the reasons for it, the fact of non-disclosure in a case which calls for it must inevitably colour the thinking of the observer.
20. The office of Lord Advocate has traditionally been held by practitioners commanding very high professional and personal respect, who have thereafter, in the ordinary course, become judges, often holding the highest judicial offices in Scotland and elsewhere. Nothing in this opinion should be understood to suggest that former Lord Advocates should, because of their previous involvement in the preparation and promotion of legislation, be ineligible to become judges or to hear a very wide range of cases. There will be cases where disclosure is called for, but objection will not frequently be taken. Where it is, and the judge thinks it right to stand down, the loss is justified by the need to maintain full confidence in the integrity of the judicial process.
21. For these reasons (and also those given by my noble and learned friends Lord Hope of Craighead and Lord Cullen of Whitekirk) I would dismiss this appeal with costs. The procedural consequences of that dismissal are the subject of Mr Davidson's cross-appeal. For the reasons given by Lord Hope, with which I am in full agreement, I would dispose of the cross-appeal as he proposes.
22. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Cullen of Whitekirk and I am in complete agreement with them. For the reasons they give I would dismiss this appeal and in respect of the cross-appeal make the order proposed by Lord Hope.
23. The apparent bias relied on in this case differs from that in other situations. This is because it depends not only on what Lord Hardie said in the House of Lords during the passage of the legislation but the capacity in which he made the remarks that are relied upon by Mr Davidson. He did so as a Government Minister promoting the legislation on the very question which is at the heart of a fundamental issue in Mr Davidson's litigation as to the effect of the same legislation. This is a matter which I, like Lord Bingham (at para 16 of his speech) and Lord Cullen (at para 81 of his speech) would stress. The impartiality here could be said to have the 'structural' quality referred to in a different context in the judgment in Procola v Luxembourg (1995) 22 EHRR 193 at p. 206, para 44.
24. If Lord Hardie was acting in a personal capacity or stating an opinion as to the desirability of the legislation and not as to its effect, the outcome could be different.LORD NICHOLLS OF BIRKENHEAD
25. I have had the advantage of reading in draft the speeches of all your Lorships. For the reasons set out in those speeches, with which I agree, I would dismiss this appeal and in respect of the cross-appeal make the order proposed by my noble and learned friend Lord Hope of Craighead.
LORD HOPE OF CRAIGHEAD
26. The background to this case has been described in the Seventieth Report from the Appeal Committee of 31 July 2003. It is not necessary to repeat these details. But a little more does need to be said about the question which lies at the heart of the dispute between the parties. It is whether, in view of section 21 of the Crown Proceedings Act 1947, Scott Davidson ("the petitioner") could competently obtain an order for specific performance against the Scottish Ministers or whether his remedy was restricted to an order which was declaratory of his rights.
The Crown Proceedings Act 1947
27. Section 21 of the Crown Proceedings Act 1947 provides:
28. Section 38(2) of the 1947 Act contains the following definitions of the expressions "civil proceedings" and "officer":
The words which I have placed in square brackets at the end of the definition of "officer" were inserted by the Scotland Act 1998, section 125 and para 7 of Schedule 8. I shall have to return later to the circumstances in which this amendment came to be made in your Lordships' House during the passage of the Scotland Bill.
29. Part V of the 1947 Act deals with the application of the Act to Scotland. Section 43(a) provides that in the application of the Act to Scotland for any reference to the High Court (other than a reference to that court as a prize court) there shall be substituted a reference to the Court of Session; that for any reference to the county court there shall be substituted a reference to the sheriff court; and that the expression "plaintiff" means pursuer. It may have been thought that the insertion of these routine provisions into the Act would have enabled it to be applied and interpreted in the same way in Scotland as in England. In the event that has proved not to be the case.
30. In McDonald v Secretary of State for Scotland 1994 SC 234 the pursuer was serving a sentence of imprisonment at HM Prison Glenochil. He claimed that he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for each illegal search. He also sought interdict against him from carrying out any searches without lawful authority, warrant or justifiable cause and interim interdict. The sheriff refused to grant interim interdict. He held that the crave for interdict was incompetent by virtue of section 21 of the 1947 Act. He also expressed the opinion that it appeared that the pursuer was challenging standing orders and that this was a matter which would require to be made the subject of judicial review in the Court of Session.
31. The pursuer then appealed to the sheriff principal, who refused the appeal. In the note attached to his interlocutor the sheriff principal referred to M v The Home Office  1 AC 377, in which it was held that section 21 of the 1947 Act did not prevent an injunction being granted in a situation in which it could have been granted prior to the Act and that section 31(2) of the Supreme Court Act 1981 gave jurisdiction to the court on applications for judicial review to grant injunctions, including interim injunctions, against ministers and other officers of the Crown. The leading speech was delivered by Lord Woolf, who said at p 413B-C that in broad terms the effect of the Act was that it is only in those situations where prior to the Act no injunctive relief could be obtained that section 21 prevents an injunction being granted. This, he said, was the least that could be expected from legislation intended to make it easier for proceedings to be brought against the Crown. The sheriff principal said that in his opinion the decision in that case did not alter the situation in Scotland.
32. The pursuer then appealed to the Court of Session. The case was argued before the Second Division with the benefit, as the pursuer had been representing himself throughout these proceedings, of submissions from an amicus curiae. It was held that the action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. At p 239 Lord Justice-Clerk Ross said that one effect of the 1947 Act was to deprive litigants in Scotland of the right which they previously had to obtain interdict and interim interdict against the Crown, with the result that orders to that effect could not be pronounced in either the sheriff court or the Court of Session. At p 243 he said that it appeared to him that there were formidable difficulties in the way of a submission to the effect that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 (now Chapter 58 of the Rules of the Court of Session 1994) did not constitute civil proceedings within the meaning of section 21. But it was not necessary to determine that point in that process, as the action had been raised in the sheriff court.
33. That was the state of the law in Scotland when in May 1997, following the election of the Labour government, Lord Hardie succeeded Lord Mackay of Drumadoon as Lord Advocate.
The Scotland Act Bill
34. One of the steps that was necessary, as part of the process of devolution to Scotland, was to replace the previous system whereby executive powers exercisable in Scotland were vested in the Secretary of State for Scotland by vesting those powers in the Scottish Ministers. This was achieved by section 44 of the Scotland Act 1998 which provides that there shall be a Scottish Executive and that the members of the Scottish Executive are referred to collectively as the Scottish Ministers. The Secretary of State for Scotland was a Minister of the Crown and, as such, in relation to the Crown an "officer" within the meaning of section 38(2) of the 1947 Act. One of the issues which had to be considered during the drafting of the Scotland Bill was whether that definition was to be applied also the Scottish Ministers. When the Bill reached the House of Lords it contained a provision in general terms in clause 109 (now section 117 of the Act) for the modification of pre-commencement enactments to accommodate the transfer of powers from Ministers of the Crown to the Scottish Executive. This clause provided that they should be read as if references to Ministers of the Crown, however described, included references to the Scottish Ministers.
35. The Ministers who were responsible for the passage through the House of Lords of the Scotland Bill were Lord Sewell, an Under-Secretary of State at the Scottish Office, and Lord Hardie, as Lord Advocate. But the principal architect of the Bill, which had begun its life in the House of Commons, was Donald Dewar, MP, the then Secretary of State for Scotland. He was assisted as to the details by a team of civil servants and parliamentary draftsmen. In accordance with the usual practice the Ministers in the House of Lords had the benefit of that assistance during the debates on the Bill in this House. Lord Hardie was, of course, answerable to the House as to matters falling within his interest as the senior government law officer on questions of policy.
36. It was in that capacity that, on the last day of the Committee Stage of the Bill on 8 October 1998, Lord Hardie moved Amendment No 292ZNA in which it was proposed that there be inserted at the end of the definition of "officer" in section 38(2) of the 1947 Act the words "and a member of the Scottish Executive". He explained the Government's reason for wishing to make this and a number of other amendments to the 1947 Act in a single sentence (HL vol 593, col 650):
It is reasonable to assume that this was a quotation from the brief provided to him, in accordance with the usual practice, by the parliamentary draftsmen. But it was obviously a statement about the government's policy.
37. There was no discussion on 8 October 1998 about the way in which this amendment was likely to affect proceedings against the Scottish Ministers. This topic was however the subject of debate during the Report Stage, in the context of amendments moved by Lord Mackay of Drumadoon from the opposition front bench.
38. On 28 October 1998 Lord Mackay of Drumadoon moved a group of amendments to clause 54 (now section 58 of the Act) giving power to the Secretary of State to intervene in action taken or proposed to be taken by a member of the Scottish Executive if he has reasonable grounds to believe that it would be incompatible with any international obligations. They included Amendment No 146E, which was to the effect that in any such proceedings the court shall not make an order for specific performance or any other like order against a member of the Scottish Executive but may instead make a declarator. Lord Mackay explained the thinking behind this group of amendments (HL vol 593, col 2043). He said that, as he saw it, the Secretary of State would have two alternatives: either to go to the court for a ruling or to make his own order, which would be subject to judicial review.
39. Lord Hardie set out in his reply the view that the government took of this amendment (HL vol 593, col 2044):
Lord Mackay accepted Lord Hardie's explanation as to the effect of the 1947 Act and did not ask for this amendment to be voted on. The words "at present" which Lord Hardie used when he was describing its effect were, of course, well chosen and entirely accurate. The question had already been the subject of a decision in the Inner House: McDonald v Secretary of State for Scotland 1994 SC 234. But that was a case about the effect of the Act on proceedings in the sheriff court. The observations that were made about its effect on proceedings for judicial review in the Court of Session were obiter. Lord Hardie was making a statement about the present state of the law in Scotland.
40. The topic came up again a few days later when on 2 November 1998 Lord Mackay of Drumadoon moved Amendment No 192E by which he sought to insert a new clause in the Bill after clause 94 (now section 101 of the Act) to the effect that no court should pronounce any order requiring a member of a Scottish Executive to introduce a Bill to the Parliament or to make, confirm or approve of any provision of subordinate legislation. He repeated concerns that he had expressed earlier that steps might be taken by the United Kingdom Government to obtain an order from the court against a member of the Scottish Executive, the effect of which would be to draw the court into the controversy. Again, speaking for the Government, Lord Hardie said in a brief reply that the amendment was unnecessary (HL Debates vol 594, col 105):
41. There was nothing remarkable about these exchanges. They were typical of the routine that is conducted day and daily in the House of Lords as it performs its functions as a revising chamber. They were not brought to the attention of the public by the media. But they were a matter of public record, as they were reported in Hansard.
The proceedings in the Court of Session
42. Three years later in October 2001 Lord Hardie was asked to sit with Lords Marnoch and Weir as a member of an Extra Division in the Court of Session in Davidson v The Scottish Ministers 2002 SC 205. He had been appointed to the bench on 18 February 2000. In accordance with the usual practice the judicial oath was administered to him in public by the Lord President at a sitting of the whole court in the First Division courtroom. The case had come before the Inner House as a reclaiming motion in a petition for judicial review by the petitioner against the Lord Ordinary's interlocutor. The issue which the court had to decide was an issue of competency. It was about the effect of section 21 of the Crown Proceedings Act 1947 in relation to the seeking of an order for specific performance against the Scottish Ministers.
43. No mention was made by anybody before the hearing began of the part that Lord Hardie had played in debates in the House of Lords about the effect of section 21 of the 1947 Act in the light of the provisions of the Scotland Act 1998 on the Scottish Ministers. He did not raise the issue himself as a possible ground of objection to his taking part in the reclaiming motion, and no objection was taken to his taking part by counsel for the petitioner. On 18 December 2001, for reasons given by each of the judges in three separate opinions, the Extra Division unanimously refused the reclaiming motion. The petitioner then sought leave to appeal to this House. He needed leave, as the interlocutor of 18 December 2001 was an interlocutory judgment of the kind referred to in section 40(1)(b) of the Court of Session Act 1988. On 20 December 2001, by a majority (Lord Weir dissenting), the Extra Division refused leave.
44. Section 40 of the 1988 Act does not provide for an appeal against an interlocutor of the Inner House of the Court of Session refusing leave. So the petitioner had to look elsewhere for a remedy against the refusal, which had denied him the opportunity of having the interlocutor of 18 December 2001 reviewed by this House. In the event, after what Mr O'Neill QC admitted had taken a good deal of reading to produce this result, his counsel found a basis for attacking the decisions that had gone against him in the pages of Hansard. On 17 May 2002 the petitioner presented a petition to the nobile officium in which he asked the Inner House to set aside the interlocutors of 18 December and 20 December 2001 on the ground that they had each been vitiated for apparent bias and to grant him leave to appeal to the House of Lords against the interlocutor of 18 December 2001. On 11 September 2002 the Second Division (the Lord Justice-clerk (Gill) and Lords Kirkwood and Philip) held that a fair minded and informed observer would have concluded that there was real possibility that Lord Hardie was biased and that the interlocutors of the Extra Division must be set aside and that the reclaiming motion should be re-heard.
45. Mr O'Neill has made it plain on several occasions that what he wished to achieve was a decision from this House on the issue about the effect of section 21 of the 1947 Act. It was necessary for him to advance the argument that Lord Hardie was disqualified from sitting for apparent bias in order to achieve this aim. I admire his ingenuity in finding a basis for this argument in what Lord Hardie is recorded as having said in Hansard. For the reasons given by my noble and learned friend Lord Bingham of Cornhill, with which I agree, the appeal against the decision of the Second Division on this issue must be refused. But I have to confess that, while I am persuaded that on the facts of the case this decision is inevitable, I regard it with little enthusiasm.
46. It would be easy, were we permitted to take a more robust view, to deplore a system which permits an unsuccessful litigant to challenge a judge's decision that has gone against him by searching after the event for previously undiscovered material, like a needle in a haystack, that might be thought to undermine his objectivity. One might think that the cost and delay of rehearing the case would only be justified if there was a real possibility that the wrong decision had been reached because of the alleged bias. But that is not the approach that we are required to take by article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which requires the tribunal to be independent and impartial, and by the Strasbourg authorities. And by long tradition in our own country the rule has been that justice must not only be done, it must be seen to be done. So it is not to the determination itself that one looks, or to the question whether there has in fact been a fair trial, but to the tribunal: Millar v Dickson 2002 SC (PC) 30, para 65. Its independence and impartiality is the subject of a separate guarantee in article 6(1): Magill v Porter (2002) 2 AC 357, 496-497, paras 108, 109. This is a necessary element in the fairness, or justice, of the determination. The means by which the information that casts doubt on its independence or impartiality came to the attention of the person who claims that it was unfair are unimportant. The court's duty is simply to examine the information that is put before it and to assess its consequences.