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

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    47.  The word "bias" is used as a convenient shorthand. But it would be a mistake to approach it in this context as if its only meaning were pejorative. The essence of it is captured in the Convention concept of impartiality. An interest in the outcome of the case or an indication of prejudice against a party to the case or his associates will, of course, be a ground for concluding that there was a real possibility that the tribunal or one of its members was biased: eg Sellar v Highland Railway Co 1919 SC (HL) 19; Bradford v McLeod 1986 SLT 244. But the concept is wider than that. It includes an inclination or pre-disposition to decide the issue only one way, whatever the strength of the contrary argument. A doubt as to whether this is the case is enough, so long as it can be justified objectively.

    48.  In Procola v Luxembourg (1995) 22 EHRR 193 it was held that because of their previous involvement in drawing up the Conseil D'Etat's opinion and framing the bill Procola had legitimate grounds for fearing that the members of the Judicial Committee felt themselves "bound by the opinion previously given": para 45. In McGonnell v United Kingdom (2000) 30 EHRR 289 the Bailiff's direct involvement of the legislation in the legislation when presiding over the States of Deliberation was sufficient to cast doubt on his judicial impartiality when he was sitting, as the sole judge of the law in the case, in McGonnell's planning appeal: para 57. A doubt as to whether there was a pre-disposition or inclination to favour the position that he had previously adopted, however slight its justification, was sufficient to vitiate the court's impartiality.

    49.  The concepts that are demonstrated by these cases need to be handled with some care. In Dyer v Watson 2002 SC (PC) 89, 108, para 52 Lord Bingham said that the threshold of proving a breach of the reasonable time requirement in article 6(1) is a high one, not easily crossed: see also pp 115-115, paras 80-85. I would apply that reasoning in this context too. The word "real" in the phrase "real possibility" needs to be emphasised. The individual's rights are not enjoyed in a vacuum, as Lord Bingham put it at p 108, para 51. The quashing of decisions on the ground of apparent bias leads to delay and increased costs and puts at risk the virtue of finality. A balance has to be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights - between holding and applying the principle and allowing it to run out of control.

    50.  Further guidance as to the approach which is to be taken to this issue is to be found in the judgment of the Strasbourg Court in Pabla Ky v Finland, Application no 47221/99, 22 June 2004. The case is important because of the light that it sheds on the decisions in McGonnell and Procola and how doubts as to the "structural" impartiality of a tribunal are to be dealt with. In paras 26-27 the court said:

    "26. In order to establish whether a tribunal can be considered 'independent' for the purposes of article 6.1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.

    27. As concerns 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges' personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to the proceedings (see Morris v the United Kingdom , no 39884/97, para 58, ECHR 2002-I.)."

    51.  In that case the applicant complained about the lack of independence of one of the members of the Housing Court Division of the Court of Appeal who was also at the time of its decision on 11 December 1997 a member of the Finnish Parliament. He had been an expert member of the Court of Appeal since 1974. He had been a member of Parliament from 1978 to 1990 and was re-elected to the Parliament on 19 March 1995. Commenting on this situation, the court said:

    "29. The case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the court's case-law (see Stafford v the United Kingdom [GC], no 46295/99, para 78, ECHR 2002-IV), neither article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interaction. The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite 'appearance' of independence, or the requisite 'objective' impartiality (see McGonnell v the United Kingdom, no 28488/95, ECHR 2000-II, para 51; Kleyn and Others v the Netherlands [GC], nos 39343/98, 39651/98, 43147/98 and 46664/99, ECHR 2003-VI, para 192).

    30. Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v Denmark, judgment of 24 May 1989, series A no 154, p 21, para 48)."

    52.  The court noted that two expert members sat alongside a majority of three judges in the composition of the Court of Appeal in such cases, that there was no indication that the MP's membership of a particular political party had any connection or link with any of the parties in the proceedings or the substance of the case before the Court of Appeal. Nor was there any indication that he had played any role in respect of the legislation which was in issue in the case. Distinguishing the case from Procola and McGonnell, the court said in para 34 that he had not exercised any prior legislative, executive or advisory function in respect of the same subject matter or legal issues before the Court of Appeal for decision in the applicant's case:

    "The judicial proceedings therefore cannot be regarded as involving 'the same case' or 'the same decision' in the sense which was found to infringe article 6.1 in the two judgments cited above. The court is not persuaded that the mere fact that MP was a member of the legislature at the time when he sat on the applicant's appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relies on the theory of separation of powers, this principle is not decisive in the abstract."

    53.  Applied to our own constitutional arrangements, Pabla Ky v Finland teaches us that there is no fundamental objection to members of either House of Parliament serving, while still members of the House, as members of a court. Arguments based on the theory of the separation of powers alone will not suffice. It all depends on what they say and do in Parliament and how that relates to the issue which they have to decide as members of that tribunal. The requirement which the Strasbourg Court stressed in para 30 of its judgment that the fear that the tribunal was not impartial must be justified objectively is an important safeguard against abuse of the objection. What is decisive is whether the fear is based on an objective appraisal: see Rojas v Berliaque [2004] 1 WLR 210, 211, para 32, per Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry. This enables account to be taken of all the surrounding circumstances. The need for a proper understanding of the issues that are involved is another safeguard. This is because, as the court explained in paras 29 and 34 of its judgment in Pabla Ky, the objection has to be justified on the facts of the case, not by relying on a theoretical principle. There must a sufficiently close relationship between the previous words or conduct and the issue which was before the tribunal to justify the conclusion that when it came to decide that issue the tribunal was not impartial or, as the common law puts it, that there was a real possibility that it was biased: see also Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 480, para 25.

    54.  But the best safeguard against a challenge after the event, when the decision is known to be adverse to the litigant, lies in the opportunity of making a disclosure before the hearing starts. That is the proper time for testing the tribunal's impartiality. Fairness requires that the quality of impartiality is there from the beginning, and a proper disclosure at the beginning is in itself a badge of impartiality.

    55.  How then does the position of Lord Hardie stand up to examination in this context? In the Second Division the Lord Justice-Clerk said that the court first had to decide whether his involvement in the Scotland Bill had any material bearing on the question before the Extra Division: 2003 SC 103, 110, para 28. I think that there were two ways of looking at this question. One is more precise than the other. On a close examination it would have been possible to say that the issues were not the same. Lord Hardie was being asked to deal with the possibility that the UK Ministers might try to obtain a coercive order against the Scottish Ministers. He was not being asked to deal with the particular issue that needed to be resolved in this case, which is whether such an order could be made in judicial review proceedings against decisions taken by the Scottish Ministers.

    56.  But the fair-minded and informed observer is unlikely to conduct such a precise analysis. He would appreciate that a pre-disposition of the kind that that puts the judge's impartiality at issue is not confined within such clearly-defined limits. He would prefer to look at the matter more broadly, and on a broad view of the matter the conclusion which the Lord Justice-Clerk reached, with which Lord Kirkwood and Lord Philip both agreed, seems to me to be unassailable. Lord Hardie was not simply promoting a relatively routine amendment. He committed himself to the view, which in the Extra Division the Scottish Ministers too were advocating, that the effect of section 21 was that they were subject only to orders which were declaratory of the parties' rights.

    57.  As for the wider circumstances, there are several factors that might be said to point against the conclusion that there was a real possibility that Lord Hardie was biased. He was now a judge, no longer a law officer. His translation from one position to the other was a public act. He had taken the judicial oath in public. He had been a judge for three years. The events of October and November 1998 were far behind him. But there are other factors. When he was Lord Advocate Lord Hardie was actively promoting the legislation on behalf of the Government in Parliament. The question as to the effect of section 21 of the 1947 Act was not just a matter of passing interest to him. It was of interest and importance to all those who were to become Scottish Ministers, including the Lord Advocate (see s 44(2) of the Scotland Act 1998). That was why section 38(2) of the 1947 Act was amended, to put their position beyond all doubt. It was not possible for the fair-minded and informed observer to say how closely associated Lord Hardie was with this decision from the facts that were available. But he would appreciate the importance of the issue to the Government's principal law officer.

    58.  In these circumstances I agree that the test which was set out in Porter v Magill [2002] 2 AC 357, para 104 was satisfied and that the Second Division were entitled to conclude that the decisions of the Extra Division were vitiated. I use the word "decisions" in the plural, because the decision to refuse leave is as vulnerable to attack on this ground as the decision on the main issue. Lord Weir's dissent is a good indication of the intensity with which this point was argued. It was particularly important for all members of the court to approach this issue impartially and to be seen to do so.

The cross-appeal

    59.  Having decided that the interlocutors of 18 and 20 December 2001 were vitiated, the Second Division had to provide the respondent with an effective remedy. The remedy which the respondent sought was set out in the prayer of the petition. Mr O'Neill asked the court to grant him leave to appeal to the House of Lords against the interlocutor of 18 December 2001. But he had to accept that it was open to it instead to remit the case for a rehearing before a properly constituted division of the Inner House. In the event the Second Division decided to adopt the latter alternative. It is against that decision that the respondent has cross-appealed.

    60.  The Lord Justice-Clerk said that, assuming that it would be competent to grant leave to appeal to the House of Lords, that course would not be appropriate: 2003 SC 103, 113, para 39. He gave two reasons for taking this view: (a) no answers to the petition had yet been lodged; and (b) as the decision was confined to only one of several preliminary questions, it did not exhaust the issues between the parties. There remained other questions of relevancy as well as the substantive human rights question which had yet to be decided at first instance. Lord Kirkwood and Lord Philip agreed that the appropriate course was for the reclaiming motion to be reheard.

    61.  Mr O'Neill submitted that the Second Division had not taken account of all the relevant factors when it was deciding which of these two courses to adopt. He invited your Lordships to reverse its decision either by granting the respondent leave to appeal to this House or by directing the Inner House of the Court of Session to do so. He made it clear that his preferred alternative was that your Lordships should grant leave. He said that it was open to this House to do this in the exercise of the nobile officium as the circumstances were unforeseen and extraordinary. But he also submitted that would have been competent for the Second Division to do so in the exercise of the same power.

    62.  It is convenient to deal first with the question whether either of the two remedies which Mr O'Neill seeks would be competent. Section 40 of the Court of Session Act 1988 provides that it shall be competent to appeal from the Inner House to the House of Lords against any interlocutory judgment, other than one where there is a difference of opinion among the judges or where the interlocutor is one sustaining a dilatory defence and dismissing the action, "with the leave of the Inner House": see section 40(1)(b). There is no provision for an appeal to this House against the refusal of leave by the Inner House. Nor is there any provision which would entitle this House itself to grant leave.

    63.  Mr O'Neill sought to overcome the provisions of the statute by appealing to the nobile officium. There is no precedent for exercise of the nobile officium of the Court of Session by this House. But I do not regard that point in itself as a fundamental objection to what your Lordships are being asked to do. The effect of an appeal is to open up the interlocutors appealed against, and all prior interlocutors, to review by this House. It is then open to the House to make such orders in the case as the Court of Session could have made which it thinks appropriate. The point of objection comes when one examines the scope of the nobile officium.

    64.  The authorities were reviewed in R, Petitioner 1993 SLT 910, 912 and L, Petitioner 1993 SLT 1310, 1314-1315 with particular reference to cases where provision for an appeal is made by statute; see also Humphries v X and Y 1982 SC 79, 82-83 per Lord President Emslie. It is necessary only to give a brief summary. The general rule is that the power may be exercised in exceptional or unforeseen circumstances to provide a remedy which will prevent the oppression and injustice which would otherwise result from the lack of any other remedy. If the intention of a statute is clear but the statute lacks the machinery that is needed for carrying it out in these exceptional or unforeseen circumstances, the power may be used to provide that machinery. But it cannot be used to defeat a statutory intention, express or implied, or to extend the scope of an Act of Parliament. So where an application is made in the context of a statutory procedure, as it is here, the first thing that must be done is to examine that procedure and see what limits have set to it by Parliament.

    65.  Section 40(1)(b) of the 1988 Act says that it shall be competent to appeal against any interlocutory judgment other than one falling within paragraph (a) with the leave of the Inner House. It is now beyond question that this means that the right to give leave to appeal against an interlocutory judgment of the Court of Session belongs to the Inner House only, and that its exercise of the discretion as to whether or not to grant leave cannot be controlled by this House: Ross v Ross 1927 SC (HL) 4, 6 per Viscount Dunedin. That being so, the short answer to Mr O'Neill's argument is that it is not open to your Lordships either to grant leave or to direct the Inner House that it should do so. To do this would be in conflict with what has been provided by Parliament. The matter is for one for the Inner House alone in terms of the statute. The Inner House is not subject to direction by your Lordships as to what it should do.

    66.  But I do not think that it would be right to end the matter there. The prospect of a re-hearing of the point in the Inner House is unattractive, bearing in mind the fact that it is unlikely to achieve finality. I would hold that, as the statute has committed the question whether leave should be given to the Inner House of the Court of Session, the Inner House has power in the exceptional and unforeseen circumstances that have arisen in this case to provide the remedy which the petitioner seeks. I turn to the question how this can be achieved in the exercise of the nobile officium.

    67.  What the petitioner seeks, in terms of the prayer of the petition, is (a) a finding that the interlocutors of 18 and 20 December 2001 were each vitiated by apparent bias and want of objective impartiality and the setting aside of "the said interlocutors", and (b) the granting of leave to appeal to this House against the interlocutor of 18 December 2001. There is, of course, a mutual inconsistency between these two craves. If the interlocutor of 18 December 2001 is set aside, all that will remain will be the interlocutors that were pronounced in the Outer House. No interlocutor will be left which can be appealed from to this House, as only interlocutors pronounced in the Inner house are appealable under section 40 of the 1988 Act. The form of petition of appeal which is set out in Appendix C to the House of Lords Practice Directions and Standing Orders (November 2002) requires the petitioner to set forth the interlocutor or interlocutors which are being appealed from to the House in the schedule to the petition: see also Practice Direction 9.1.

    68.  So if the remedy which the petitioner seeks is to be granted to him it will be necessary for the interlocutor of 18 December 2001 to be left standing. All that is needed by way of a preliminary step is the recall of the interlocutor of 20 December 2001. That having been done, it will be competent for the Inner House to give leave to appeal to the House of Lords against the interlocutor of 18 December 2001. The Second Division have already considered this option and rejected it. But in my opinion it is open to your Lordships to ask the Inner House to take a fresh look at this matter. I would give two reasons in support of this view.

    69.  The first reason is that the question which was at issue between the parties in the reclaiming motion in the judicial review proceedings is a question of general public importance which is appropriate for consideration by this House. It has always been appreciated that it would not be right to give leave to appeal to the House of Lords if the point at issue is one of Scottish practice or Scottish procedure, as it so often is in interlocutory matters. In Frame v Caledonian Railway Co 1913 2 SLT 368, where leave was refused, the question was whether the case was appropriate for proof rather than jury trial. As Lord Justice-Clerk Macdonald said at p 369, the question at that stage related to procedure and to procedure only. In Whitehill v Corporation of Glasgow 1915 2 SLT 174, where leave was also refused, the question was one relating to the recovery of documents. Lord Strathclyde said at p 176 that the subject matter was Scottish procedure and Scottish procedure only. In McIntosh v British Railways Board 1990 SC 339 the question was whether the case should be remitted from the Court of Session to the sheriff court. The Lord President (Hope) said at p 346 that the question was concerned intimately with matters of Scottish practice and procedure and that he did not think that it was for the House of Lords to give directions to the Court of Session in matters of that kind: see also Girvan v Inverness Framers Dairy 1998 SC (HL) 1 at 21C-21G. This case is not of that character.

    70.  Leave was also refused by a court of five judges in Costain Building and Civil Engineering Ltd v Scottish Rugby Union 1993 SC 650, where there had been arrestment on the dependence and the defenders' motion was for recall of the arrestment. The reason for this decision were given by the Lord President at p 663H:

    "Your Lordships decided that we ought not to grant leave in this case. The ground on which we have held the arrestment to be incompetent is well settled. No new point of difficulty or importance has arisen which would make it appropriate for our decision on this interlocutory matter, which is a unanimous decision of a court of five judges, to be reviewed by the House of Lords. It would also be inappropriate for the very large sum which was arrested in the hands of the defenders' bankers to remain subject to the arrestment for the substantial time required for any appeal to the House of Lords to be finally disposed of. In our opinion it is in the interests of justice that the arrestment which we have held to be incompetent should be recalled without any further delay."

    71.  Delay in the giving of a remedy is not a factor in this case. The petitioner was transferred long ago from the conditions which formed the basis of his complaint, and he was released from HM Prison Barlinnie nearly two years ago. The case has a wider significance. As Lord Weir noted in the Extra Division, it had been described as a test case, the result of which would affect other similar cases which were awaiting a hearing and might have important implications in the field of administrative law: 2002 SC 205, 223. It is clear from the opinions that were delivered in that case that all three judges were uneasy about the way in which the question as the effect of section 21 of the 1947 Act had been brought before them. But they proceeded nevertheless to deal with this issue and to pronounce judgment on it. As Lord Bingham has already said (para 5), counsel for the Scottish Ministers expressly recognised the constitutional importance of the issue as to the effect in Scotland of section 21 of the 1947 Act.

    72.  The second reason is that the grounds on which the Second Division refused leave (that no answers had yet been lodged and, more importantly, that there remained other questions that had yet to be decided at first instance: 2003 SC 103, 113, para 39) were directed to features of this case which are to be found in most, if not all, cases that are brought before the court under the judicial review procedure which is provided by Chapter 58 of the Rules of Court: see West v Secretary of State for Scotland 1992 SC 385, for example. Answers had been lodged in that case. But the debate was directed solely to the issue of competency, leaving aside all questions of relevancy.

    73.  The whole point of the judicial review procedure is that it is intended to eliminate the procedural timetable which applies in the case of an ordinary action. It does this by enabling the petitioner to focus on the particular point at issue and bring it before the court for a decision and for the provision of a remedy as soon as possible. A decision can be obtained from the court within a very short time by concentrating on a point of competency or relevancy which will make further proceedings in the case pointless or unnecessary. The issues which are decided by the court in this way are typical of those which arise in administrative law. They are often of general public importance, as they affect cases other than those which are of immediate concern to the petitioner.

    74.  It was concern about the time taken to achieve this result under the ordinary procedure that led Lord Fraser of Tullybelton to suggest that there might be an advantage in developing a special procedure in Scotland for dealing with questions in the public law area, comparable to the English prerogative orders: Brown v Hamilton District Council 1983 SC (HL) 1, 49. It would be unfortunate if the effect of that procedure, which has been of such obvious benefit to the exercise by the Court of Session of its supervisory jurisdiction, were to have the effect of depriving litigants of the opportunity of appealing to the House of Lords against its decisions at the interlocutory stage under that procedure. That however is what the reasons which were given for refusing leave in this case would be likely to do if they were to be followed in other cases.

    75.  For these reasons I think that the question whether leave to appeal should be given in the exercise of the nobile officium ought to be re-examined by the Inner House. But it must be understood that the decision as to whether leave should be given resides there. It would be open to the Inner House to refuse leave if it is persuaded that that there are good grounds for doing so.


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