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Davidson (AP) (Appellant) v. Scottish Ministers (Respondents)(Scotland)
LORD NICHOLLS OF BIRKENHEAD
1. English courts have power to make coercive orders, prohibitory and mandatory, against ministers of the Crown. This was decided authoritatively by your Lordships' House in M v Home Office  1 AC 377. The question raised by this appeal is whether, in the context of judicial review proceedings, Scottish courts have similar jurisdiction in respect of Scottish Ministers, that is, members of the Scottish Executive.
2. It would be surprising if this were not so. But on this appeal the Scottish Ministers contend that the Crown Proceedings Act 1947 leads inescapably to the opposite conclusion.
3. The proceedings have an unusual history. For present purposes the essential facts are simple indeed. Scott Davidson spent 18 months in Barlinnie Prison, Glasgow, between April 2001 and August 2002. Initially he was there on remand and later as a convicted prisoner. While there he complained to the prison governor about prison conditions: gross overcrowding, inadequate sanitary facilities and poor regime activities. He said detention in these conditions was inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights.
4. On 24 October 2001 he presented a petition for judicial review in the Court of Session. He sought a declarator that he was being detained in conditions incompatible with article 3, an order ordaining the Scottish Ministers to secure his transfer to prison conditions compliant with article 3, and damages. The legal basis for these claims was that the general superintendence of prisons is vested in the Scottish Ministers under section 3(1) of the Prisons (Scotland) Act 1989. Accordingly, so the claim runs, Mr Davidson's detention in prison in Convention non-compliant conditions was unlawful conduct by the Scottish Ministers within the meaning of section 6 of the Human Rights Act 1998. Such conduct was also outside the power of the Scottish Ministers within the meaning of section 57(2) of the Scotland Act 1998.
5. On 26 October 2001 the Lord Ordinary (Johnston) refused an application for interim relief. He was bound by the decision of the Second Division of the Inner House in McDonald v Secretary of State for Scotland 1994 SC 234 to hold that an order of interdict against the Crown was prohibited by section 21 of the Crown Proceedings Act 1947 and no longer competent in Scotland even if it had been before the passing of the Act: 2002 SCLR 166, para 3. On 18 December 2001 an Extra Division dismissed Mr Davidson's appeal: 2002 SC 205.
6. The correctness of that decision is now in issue before your Lordships. The intervening vicissitudes which have beset these proceedings are recounted in the speeches in your Lordships' House reported at 2005 SC (HL) 7. Mr Davidson is no longer in prison but the issue raised by the decisions of the Lord Ordinary and the Extra Division in these proceedings is one of considerable public importance.
The Crown Proceedings Act: its effect in England
7. The question in the present case concerns the application of the Crown Proceedings Act 1947 in Scotland. But the proper interpretation of this statute in relation to Scotland calls first for an understanding of the way the Act operates in England: what was its purpose, and what were the changes it made to English law. This is a necessary first step because the 1947 Act is drafted in a form primarily directed at the legal position obtaining in England at that time.
8. As is well known, in the 1940s English law relating to proceedings against the Crown was disfigured by two anachronistic relics. One concerned substantive law, the other was essentially procedural. The defect in substantive law was that proceedings in tort did not lie against the Crown. The procedural defect concerned claims against the Crown for breach of contract or in quasi-contract or for the recovery of land or property. The remedy in respect of these claims was by way of the antiquated and cumbersome procedure of petition of right. Proceedings required the Sovereign's fiat. A third defect, also procedural in character, was that the Crown could not be sued in the county court.
9. The existence of these defects had been obvious for some time. In 1921 the Earl of Birkenhead LC set up a committee to consider these matters under the chairmanship of Lord Hewart CJ: Crown Proceedings Committee Report (1927) (Cmd 2842). Eventually practical problems came to a head in 1946. Observations in your Lordships' House in Adams v Naylor  AC 543, followed by the decision in Royster v Cavey  1 KB 204, exposed the inadequacies of the make-shift expedients currently adopted as a means of doing justice despite the immunity of the Crown in tort.
10. Part I of the Act made changes to the substantive law. Section 1 dealt with cases where before the Act a claimant had to obtain His Majesty's fiat when seeking to proceed with a petition of right. In future those claims could be enforced against the Crown as of right. Section 2 imposed liability on the Crown in respect of torts committed by its servants or agents. Sections 3 to 12 contained sundry ancillary provision on such diverse matters as intellectual property, contribution, contributory negligence, Crown ships, postal packets, members of the armed forces and so forth.
11. Part II of the Act dealt with jurisdiction and procedure. Section 13 provided that in future 'all civil proceedings' by or against the Crown in the High Court should be instituted in accordance with rules of court. The old forms of civil proceedings by or against the Crown, including petition of right, were abolished. Section 15 enabled civil proceedings to be instituted against the Crown in a county court, in accordance with county court rules.
12. Section 21 made provision for the remedies which in future were to be available in 'civil proceedings' by or against the Crown. Subject to the provisions of the Act, in future the court should have power to make 'all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require': subsection (1). This enabling provision was subject to two restrictive provisos in respect of proceedings against the Crown. Proviso (a) excluded the grant of an injunction or an order for specific performance where such relief might be granted in proceedings between subjects. In lieu the court might grant appropriate declaratory relief. Proviso (b) similarly excluded an order for the recovery of land or delivery of property. Here also a declaration was prescribed as the appropriate form of relief in proceedings against the Crown.
13. Section 21(2) contains a further restrictive provision. This concerned orders made against officers of the Crown, as distinct from orders made directly against the Crown. It is of Delphic opaqueness. Even contemporary writers of distinction were at a loss. Professor Glanville Williams, writing in 1948, described this as a 'somewhat obscure subsection': 'Crown Proceedings' (1948), page 150. The subsection reads:
'Officer of the Crown' includes a minister of the Crown and other servants of His Majesty: section 38(2). This expression now includes a member of the Scottish Executive: see the Scotland Act, section 125, and Schedule 8, para 7.
14. Some of the ramifications of these restrictive provisions in section 21 were considered by Lord Woolf in his learned discussion in M v Home Office  1 AC 377. In the present case it is unnecessary to explore these questions. The present appeal raises an anterior issue. The issue is whether a petition to the Court of Session by way of judicial review falls within section 21 at all. For this purpose what matters is the meaning of the phrase 'civil proceedings' in section 21. This phrase governs the scope of both section 21(1) and section 21(2).
15. In English law the phrase 'civil proceedings' is not a legal term of art having one set meaning. The meaning of the phrase depends upon the context. For instance, the phrase is often used when contrasting civil proceedings with criminal proceedings. So used, and subject always to the context, civil proceedings will readily be regarded as including proceedings for judicial review.
16. This usage was not intended in the 1947 Act. That is clear beyond doubt. Proceedings on the Crown side of the King's Bench Division were the predecessors to applications for judicial review, and the definition of 'civil proceedings' in section 38 of the Act states expressly that 'civil proceedings' does not include proceedings on the Crown side. Thus section 21 was not applicable to Crown side proceedings.
17. This is not surprising. Crown side proceedings were the subject of legislative attention and amendment in sections 7 to 10 of the Administration of Justice (Miscellaneous Provisions) Act 1938. Orders of mandamus, prohibition and certiorari were substituted for the ancient writs correspondingly named. Informations in the nature of quo warranto were replaced by injunctions. Rules of court were to be made prescribing the procedure for obtaining the new orders and the new form of injunctive relief. The 1947 Act was aimed at a different target, where reform was overdue.
18. Accordingly, with one immaterial exception in section 25, Crown side proceedings were not the subject of reform by the 1947 Act. The remedies available in Crown side proceedings were not affected by the Act. Prerogative writs and orders, including mandamus, had long been issued against officers of the Crown: see Lord Parker CJ in R v Commissioners of Customs and Excise, Ex p Cook  1 WLR 450, 455. The 1947 Act did not touch this jurisdiction.
19. Against this background I turn to the purpose and scope of section 21. In its application in England section 21 is essentially consequential on changes to substantive and procedural law made elsewhere in the Act. Take proceedings against the Crown. The Act created new rights against the Crown in sections 1 and 2 and other sections in Part I of the Act. The Act abolished petitions of right. The Act also repealed or amended existing 'sue and be sued' legislation: section 39. Some provision was therefore needed for the remedies a court could give where a claimant sought to enforce these newly-created rights or sought to rely on the new procedures. This provision is found in section 21. Section 21 also served a corresponding purpose in respect of proceedings brought by the Crown. For instance, as already noted, section 13 abolished the old forms of proceedings, such as Latin information, then employed by the Crown in civil proceedings.
20. That this was the purpose of section 21 is made abundantly clear by section 23. Section 23 listed the proceedings falling within the expression 'civil proceedings by or against the Crown' in Part II of the Act. This list was exhaustive: ' the following proceedings only'. I can go straight to section 23(2). Under section 23(2) references to 'civil proceedings against the Crown' in Part II are confined essentially to three types of proceedings: first, proceedings seeking relief which pre-Act would have taken the form of proceedings against His Majesty by way of petition of right; secondly, proceedings which, under legislation repealed by the 1947 Act, would previously have taken the form of an action against the Attorney General, a government department, or an officer of the Crown as such; and, thirdly, proceedings which a person is entitled to bring against the Crown by virtue of the 1947 Act, for instance, a claim in tort: see section 23(2), paragraphs (a), (b) and (c). In each of these three types of case the need for the Act to set out the court's power to grant relief arose from other provisions of the Act itself. Section 23(1) made corresponding provision for the content of references to 'civil proceedings by the Crown'.
21. This limitation on the scope of civil proceedings is reflected in the content of section 21 itself. Under section 21(1) the court is empowered, in civil proceedings by or against the Crown, to make 'all such orders as it has power to make in proceedings between subjects'. This language is not apt to empower the court to make prerogative orders or to issue a writ of habeas corpus. This is to be expected, because Crown side proceedings were not within the reach of section 21. Section 21 concerned a different subject matter: civil proceedings by or against the Crown other than proceedings on the Crown side.
The Crown Proceedings Act: its application to Scotland
22. Part V of the Act made provision for the application of the Act to Scotland. It did so by enacting, in section 42, that certain sections should not apply in Scotland. Section 1 is one of the excluded sections. The reform achieved by this section was not needed in Scotland. Otherwise Part I, including section 2 imposing liability on the Crown in cases of tort, applies in Scotland. The whole of Part II is excluded, with two exceptions. Section 13, so far as it abolished the old forms of proceedings by or against the Crown, is applicable in Scotland. So is section 21.
23. Section 43 translated certain terms. For instance, references to the High Court are to be read as references to the Court of Session; county court rules are references to Acts of Sederunt applying to the sheriff court; injunction means interdict; and tort means any wrongful or negligent act or omission giving rise to liability in reparation. Section 44 enables civil proceedings against the Crown to be instituted in the sheriff court.
The issue in the present appeal
24. The issue in the present case arises out of the bland reference to section 21 as one of the sections of the Act applicable in Scotland. The Act does not enlarge on how the provisions of section 21 are to be applied in Scotland. In particular, there is no explanation of how the definition of 'civil proceedings' in section 38 is to be interpreted in Scotland. The statutory definition is in these terms:
25. The problem in the present case derives from this definition and the failure to explain how the reference to Crown side proceedings is to be interpreted when section 21 is applied in Scotland. The Crown side of the King's Bench Division has no precise counterpart in Scotland which could simply be adopted by analogy when translating this definition for use in Scotland. Crown side proceedings originated in the former Court of King's Bench. It seems that the work in that court was divided into two sides, the Crown side and the plea side: Blackstone's Commentaries on the Laws of England, 3rd ed (1862), vol III, p 42. In the fullness of time the work of the plea side became merged with the general jurisdiction of the High Court, but the jurisdiction of the Crown side remained distinct. The jurisdiction of the Crown side was both criminal and supervisory. The supervisory jurisdiction now takes the form of judicial review. The nearest equivalent in Scotland is the supervisory jurisdiction of the Court of Session. But the two jurisdictions cannot be wholly equated, because the supervisory jurisdiction of the Court of Session is not confined to those cases English law has accepted as amenable to judicial review: West v Secretary of State for Scotland 1992 SC 385.
26. This lack of equivalence figured prominently in the argument of the Scottish Ministers. The lack of equivalence or 'correlation', it is said, makes it impossible to substitute a reference to applications to the Court of Session's supervisory jurisdiction for the reference to proceedings on the Crown side of the King's Bench Division when applying the statutory definition in Scotland. The parallel is insufficiently close to justify what would, in any event, be a singularly bold implication to read into a statute. Absent any such implication, the Court of Session's supervisory jurisdiction by way of judicial review is not excepted from the scope of the expression 'civil proceedings' in section 21. Accordingly, proceedings invoking the Court of Session's supervisory jurisdiction, unlike judicial review proceedings in England, fall within the ambit of the phrase 'civil proceedings' in section 21. Hence, the argument concludes, the restrictive provisions in section 21 preclude the Court of Session from granting an interdict against the Crown or an officer of the Crown even when that court is exercising its supervisory jurisdiction.
27. This argument cannot be right. If correct, it would bring about a result Parliament cannot have intended. It would mean that in judicial review proceedings ministers of the Crown would be less amenable to coercive orders in Scotland than in England. It would mean that in this respect section 21, applicable throughout Great Britain, had the effect of granting to ministers of the Crown in Scotland an immunity not existing in England and not previously existing in Scotland. Pre-Act the courts of both countries could make coercive orders against ministers of the Crown in the contemporary equivalent of what are now known as proceedings for judicial review. Post-Act that remained the position in England but, according to this argument, that ceased to be the position in Scotland.