Davidson (AP) (Appellant) v. Scottish Ministers (Respondents)(Scotland)
28. In my view an interpretation of the 1947 Act having such an unbalanced effect would be inconsistent with one of the principal purposes of the Act. It would frustrate one of the objects section 21 was intended to achieve.
29. This calls for elaboration. I have already noted that in England section 21 serves the purpose of setting out the remedies which are to be available in proceedings in cases where the Act abolished existing procedures or created new rights. In England section 21 is confined to that function by section 23. Section 21 serves the like purpose in Scotland. For instance, section 21 identifies the relief a Scottish court may afford in proceedings seeking reparation from the Crown under section 2.
30. In its operation in Scotland, however, section 21 has an important additional function. Section 21 is concerned to harmonise the law of Scotland with the law of England in relation to the types of remedies, and the limits on the remedies, available in civil proceedings against the Crown. This objective was sought to be achieved as follows. As applied to Scotland, section 21 contains no provision limiting its scope in the way section 23 confines the ambit of section 21 in England. Unlike England, in Scotland section 21 applied quite generally to all civil proceedings brought by or against the Crown. Thus the effect of section 21 in Scotland was that whatever may have been the law and practice in Scotland in the past, after 1947 the remedies available in Scotland in civil proceedings against the Crown were to be substantially the same in principle as those applicable in England as enacted by section 21. In the past the Court of Session may have granted interdicts or made orders against the Crown or its officers. In future the restrictive provisions in section 21 would apply on both sides of the border. In this way Scots law and English law on this constitutionally important subject would be brought into harmony.
31. Unfortunately, this harmonising legislation breaks down at one point if it is read literally. It breaks down in respect of the remedies available in judicial review proceedings against the Crown or its officers. The legislation excludes Crown side proceedings from section 21 as applied in England but, on its face, includes judicial review proceedings against the Crown within section 21 as applied in Scotland. Thus, when read literally these provisions fail to achieve the harmonising purpose of the 1947 Act. Far from achieving harmony, they bring discord where previously there was harmony.
32. Overall, three features stand out. First, in 1947 Parliament intended that the existing law and practice regarding Crown side proceedings should continue in England. This was made plain by the exclusion of Crown side proceedings from the scope of the Act. Secondly, Parliament intended that, so far as possible, the relief available in civil proceedings against the Crown should be the same in both countries. That was one of the objects of section 21. Thirdly, the issue in this case has considerable constitutional importance. A drafting slip should not deprive citizens in Scotland of the protection Parliament intended they should have against government ministers.
33. With these considerations in mind it is my view that, by analogy with the exclusion of Crown side proceedings from section 21 in England, when applied in Scotland references to civil proceedings in section 21 are to be read as not including proceedings invoking the supervisory jurisdiction of the Court of Session in respect of acts or omissions of the Crown or its officers. By this means effect can be given to the intention of Parliament. Uniformity will be achieved. The coercive remedies available in judicial review proceedings against the Crown and its officers will be substantially the same in both countries.
34. So read, section 21 is not applicable to the present proceedings. I would so hold, and allow this appeal. On this footing it is not necessary to address the further grounds urged in support of this appeal. Nor, in the circumstances of this case, is it appropriate to do so.
LORD HOPE OF CRAIGHEAD
35. This appeal brings to an end a campaign that counsel for the appellant, Mr Aidan O'Neill QC, has been conducting to reverse the situation whereby remedies which were formerly available against the Crown in Scotland and which were made available by the Crown Proceedings Act 1947 for the first time in England have been held to have been denied by the same Act to Scottish litigants: see Aidan O'Neill, Judicial Review, a Practitioner's Guide (1999), paras 1.77-1.92. Although the case comes before us as an appeal against an interlocutor of the Inner House of the Court of Session dated 15 December 2004, it is in reality an appeal against a decision of an Extra Division on 18 December 2001 (Lords Marnoch, Hardie and Weir) to refuse a reclaiming motion against the refusal by the Lord Ordinary (Lord Johnston) on 26 October 2001 of the appellant's motion for an interim coercive order against the Scottish Ministers as incompetent: 2002 SC 205.
36. In McDonald v Secretary of State for Scotland 1994 SC 234, 238-239, Lord Justice Clerk Ross said:
37. Support for this view was undoubtedly to be found in the fine print of the Act. No one can pretend that it is easy to follow. It is obvious at a glance that the draftsman failed to examine the implications for the Scottish system to the same level of detail as is to be found in the provisions that are applicable in England. But those who cared for the structure and orderly development of the law found it hard to believe that this was indeed what Parliament had intended. Why should litigants in Scotland have been deprived in 1947 of a remedy which they had previously enjoyed and was, for the first time, being made available to their counterparts in England? Surely there would have been a protest about this result, if anyone had thought to explain that this was the intention while the Bill was being discussed in Parliament.
38. That having been said, the decision in McDonald has been regarded as having settled the issue in Scotland for over a decade. The appellant's attempt to open it up in the present proceedings, predictably, met with no success when the Extra Division heard the reclaiming motion against the Lord Ordinary's interlocutor. We on the other hand have had the benefit of examining the issue in a tribunal which draws its membership from all parts of the United Kingdom. There are occasions when those of your Lordships who come from Scotland feel justified in defending Scots law and the Scottish legal system against what are perceived to be alien influences. But this is not one of them. There is everything to be gained by the sharing of views among your Lordships which it has been possible to enjoy in this case. This has helped greatly, as we step back and try to take a broader view of section 21 of the 1947 Act. I wish to pay tribute in particular to the analysis of how the 1947 Act operates in England which has been provided by my noble and learned friend Lord Nicholls of Birkenhead, as this is crucial to a proper understanding of how the Act as a whole was intended to operate.
39. There are number of features of the 1947 Act which I should like to mention before turning to what I have referred to as the fine print. First, and above all, it is a United Kingdom statute. Its subject matter, the taking of proceedings by and against the Crown, is of equal interest to litigants in Scotland as it is to those in England. Each country has its own legal system. The remedies that are on offer and the courts in which they are available have different names. But in this context this is merely a matter of machinery. The remedies are all designed with the same aim, which is to provide litigants with a means of obtaining justice. Furthermore in 1947, long before devolution, there was a single and indivisible system of government. It was administered in the name of the Crown, itself single and indivisible, from Westminster. If it was the intention that the Act should have diametrically opposing consequences in Scotland as compared with those in England, one would have expected this to have been provided for expressly in the Bill when it was before Parliament. The issue could then have been debated and the political and other consequences faced up to before it passed into law. The Act's silence on the matter is therefore highly significant. It is as powerful an indication as one could wish to find that it was not anticipated, nor was it intended, that it would have such consequences.
40. But I accept that it is necessary to examine the wording of section 21 in its application to England, and then to see whether, with such assistance as can be derived from Part V which applies the Act to Scotland, the meaning that is has in England can be applied in Scotland too. My noble and learned friend Lord Rodger of Earlsferry has conducted this exercise and for the most part I am content to adopt with gratitude his careful and valuable analysis. But I should like to expand upon my general acceptance of his conclusions in two respects. First I should like to explain how the expressions "private law" and "public law" which he has used should be understood when we are describing the sphere of application of section 21 of the Act. The second relates to the extent to which, if at all, the definition of "civil proceedings" in section 38(2) for England and Wales can be read across so as to apply to proceedings for judicial review in Scotland.
"Public law" and "private law"
41. The 1947 Act does not, of course, use the expressions "public law" and "private law" to describe the scope of its application. This is not surprising. It was not until several decades later that they became part of the English lawyer's vocabulary. As Lord Wilberforce explained in Davy v Spelthorne Borough Council  AC 262, 276:
42. Scots law, in contrast to English law, tends to fasten not upon remedies but upon principles. But in Scotland too, notwithstanding references in article XVIII of the Act of Union 1707 to laws concerning private right and public right respectively and in the other texts referred to in para 77 of his speech by Lord Rodger, use of the expressions "private law" and "public law" is of recent origin and there too these expressions must be used with caution. Scots law does not find it easy in practice to recognise the boundaries between these two concepts. One of the problems to which the decision in West v Secretary of State for Scotland 1992 SC 385, was directed was the difficulty which the Court of Session had encountered when attempting to distinguish between cases which could be loosely described as being in the private law or the public law field when determining whether or not judicial review was a competent remedy: see Connor v Strathclyde Regional Council 1986 SLT 530; Safeway Food Stores Ltd v Scottish Provident Institution 1989 SLT 131; and especially Tehrani v Argyll and Clyde Health Board 1989 SC 342, where the Second Division allowed a reclaiming motion against an interlocutor of the Lord Ordinary (Lord Weir) reducing the board's decision to dismiss the petitioner from its employment, on the view that the issue between the petitioner and the board was a matter of private law and that proceedings by way of ordinary action was the correct remedy. It was his concern about some of things said about the distinction between public law and private law in Tehrani's case that led Lord Weir as the Lord Ordinary in West 1992 SC 385, 391 to say that he would welcome the opportunity that a reclaiming motion would give for a comprehensive review of the supervisory jurisdiction of the court. It would be preferable to avoid disputes of that kind when a coercive remedy is being sought against the Crown under section 21 of the 1947 Act. A more precise criterion is needed to distinguish between cases where such a remedy is and is not competent.
43. The areas of the civil law of Scotland that fall within the expression "Scots private law" for the purposes of section 29(1) of and para 2(3) of Schedule 4 to the Scotland Act 1998 are set out in section 126(4) of that Act. This provision stops short of providing a statutory definition of the expression. But the general structure which it adopts has been familiar since the time of the institutional writers, and it provides us with a useful base from which to work for present purposes. Section 126(4) provides:
The inclusion of judicial review of administrative action was no doubt intended to ensure that all aspects of procedural law embracing in the law of actions (see para (e) of the subsection) were brought within the legislative competence of the Scottish Parliament.
44. Following Lord Rodger's analysis, the key to a proper understanding of the scope of the proviso as it applies to Scotland lies in the use of the phrase "proceedings between subjects" in proviso (a) to the subsection. The areas of private law where, in proceedings between subjects, the court grants relief by way of interdict or specific implement are those referred to in section 126(4)(b), (c) and (d) of the 1998 Act. In the context of proceedings by or against the Crown for the purposes of section 21 of the 1947 Act, where the law of persons does not operate, we need concern ourselves only with the law of obligations and the law of property.
45. In West v Secretary of State for Scotland 1992 SC 385, 413, the court said that the sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse the jurisdiction, power or authority which has been delegated or entrusted to it or fails to do what the jurisdiction, power or authority requires. The scope of judicial review, as so defined, is wide enough to include disputes between subjects. But further on the same page the court said that contractual rights and obligations, such as those between employer and employee which were in issue in Tehrani's case, are not as such amenable to judicial review. The same might be said of rights and obligations arising under any other branch of the law of obligations referred to in section 126(4)(c) of the Scotland Act 1998. They too fall outside the scope of judicial review.
46. In my opinion the scope which is to be given to the proviso (a) to section 21(1) in Scotland should be understood in the light of this background. The proviso extends to any proceedings in which a remedy is sought against the Crown under those branches of Scots private law which are referred to in section 126(4) of the Scotland Act 1998 as the law of obligations and the law of property. It is not confined to the common law. It extends also to a remedy sought under any enactment which forms part of the law of obligations or of the law of property.
47. In West v Secretary of State for Scotland 1992 SC 385, 411, the court said that the use of the expressions "public law remedy", "public law areas" and "public administrative law" was inappropriate in a discussion as to whether an application for judicial review under RC 260 (now Chapter 58 of the Rules of the Court of Session 1994) was competent. At p 413 it said that the competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor was it correct in regard to issues about competency to describe judicial review as a public law remedy.
48. There is an obvious tension here between the way the English system of judicial review is described and the extent of the supervisory jurisdiction in Scotland. But it is worth recalling the words of Lord Hardwicke in his letter to Lord Kames, quoted in Lord Saltoun v Advocate General for Scotland (1860) 3 Macq 659, 675, note (a), referred to by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel  AC 531, 579-580:
It was argued in Pemsel that, although the words "charity" and "charitable" had a definite legal meaning in England, they could not be applied in the same way in Scotland unless they had a definite legal meaning there too. As Lord Macnaghten observed at p 580:
49. The draftsman of the 1947 Act did not attempt to translate the entirety of the definition of the expression "civil proceedings" in section 38(2) so as to enable the Scottish reader to identify its Scottish equivalent. Section 38(2) provides:
We are told by section 43(a) that in the application of the Act to Scotland for the references to the High Court and the county court references to the Court of Session and the sheriff court are to be substituted. But section 43 is silent as to the application to Scotland of the reference to proceedings on the Crown side of the King's Bench Division.
50. It is worth noting that, while the Notes on Clauses to the Bill state that the definition of "civil proceedings" in the interpretation clause "includes" proceedings on the Crown side, the definition which appears in section 38(2) remained unchanged throughout the Bill's progress through Parliament from the moment when it was first introduced in the House of Lords. Statements in the Notes on Clauses are usually regarded as a reliable guide to what was in the mind of the draftsman. But on this occasion it seems that the word "includes" was used in error. The history of the Bill shows that there never was any intention to include proceedings on the Crown side of the King's Bench Division within the definition of "civil proceedings" in section 38(2).
51. There are, I think, two reasons why section 43 is silent on this matter. The first is that under the Scottish system proceedings for the review of decisions of inferior courts in the exercise of their criminal jurisdiction in Scotland are brought in the High Court of Justiciary. The Court of Session has no jurisdiction in such matters. They are not brought before a civil court. They are not civil proceedings. The High Court of Justiciary has exclusive jurisdiction in all criminal matters: Law Hospital NHS Trust v Lord Advocate 1996 SC 301, 311. The draftsman would have been justified in regarding a provision designed to exclude such proceedings from the scope of the expression "civil proceedings" as unnecessary. The second reason is the vestigial nature of anything in Scottish practice that might be described as the equivalent in civil proceedings of the Crown side of the King's Bench Division. There was no obvious way of describing it in 1947, nor was there any obvious need to attempt to do so.
52. The situation seems therefore to be this. The language of English law has been used to exclude what we now recognise as judicial review from the scope of the expression "civil proceedings" wherever it is used in section 21. There is no indication that the scope of that expression was intended to be different in Scotland. As Lord Jauncey of Tullichettle remarked in British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65, 94, it is inconceivable that Parliament should have intended to fetter the right of the subject to obtain a prohibitory order more strictly in Scotland than in England. Reasoning by analogy, in Lord Hardwicke's phrase, is preferable to accepting a result that is inconceivable.
53. It would, as Lord Rodger observes, be not to harmonise but to introduce a new difference simply to say that the definition of civil proceedings in section 38(2) excludes, in its application to Scotland, all proceedings by way of judicial review. But in my opinion it is possible, for present purposes, to define that area of proceedings by way of judicial review that matches its English counterpart in a way that produces harmony. I would do this by adopting the reference to "proceedings between subjects" that appears in proviso (a) to section 21(1) of the 1947 Act, and applying to it the distinction between public law and private law that I have already identified. Judicial review proceedings where the supervisory jurisdiction of the Court of Session is being invoked against the Crown are public law proceedings. This means that judicial review proceedings against the Crown, including the Crown in right of the Scottish Administration (see section 99(1) of the Scotland Act 1998), or against an officer of the Crown acting as such are not civil proceedings for the purposes of the proviso to section 21(1). They also fall outside the scope of the expression "civil proceedings" in section 21(2).
54. I would summarise the conclusions which I have reached about the meaning of section 21 in its application to Scotland in this way. There are excluded from the expression "any civil proceedings" in section 21(1) and section 21(2) proceedings by way of judicial review where relief is sought in respect of acts or omissions of the Crown or of an officer of the Crown acting as such. Proviso (a) to section 21(a) extends to any proceedings in which a remedy is sought against the Crown in private law proceedings, but not otherwise. I would allow the appeal.
LORD RODGER OF EARLSFERRY
55. In 2001 the appellant, Mr Scott Davidson, was a prisoner in Barlinnie prison, first in C Hall and later in E Hall. In September of that year his solicitors wrote to the Governor complaining of what they alleged were the insanitary conditions in which he was being held and, in particular, of the practice of slopping out. The solicitors claimed that the conditions were inhuman and degrading and that Mr Davidson's rights under article 3 of the European Convention on Human Rights were being violated. When nothing was done about the matter, Mr Davidson presented a petition for judicial review which was served on the Scottish Ministers as respondents. He sought, inter alia, declarators as to the violation of his rights and an award of damages. In addition, however, he sought an order "ordaining the Scottish Ministers to secure the transfer of the petitioner to conditions of detention compliant with article 3 of the Convention, whether within the prison or any other prison; and for such an order ad interim."
56. The Lord Ordinary (Johnston) refused the appellant's motion for an interim order as being incompetent, having regard to the terms of section 21 of the Crown Proceedings Act 1947 ("the 1947 Act"): 2002 SCLR 166. The appellant reclaimed and, at the start of the hearing before an Extra Division (Lord Marnoch, Lord Hardie and Lord Weir), on his unopposed motion, the pleadings were amended so as to crave two further declarators:
On 18 December 2001 the Extra Division refused the reclaiming motion and, on 20 December, Lord Weir dissenting, refused leave to appeal to your Lordships' House.
57. How both those interlocutors came to be recalled and how your Lordships have nevertheless heard an appeal against the first of them is a long tale - and not without interest. But it has been twice told, first by my noble and learned friend, Lord Hope of Craighead, in Davidson v Scottish Ministers (No 3) 2005 SC (HL) 1 and then by Lord Bingham of Cornhill in Davidson v Scottish Ministers (No 2) 2005 SC (HL) 7. The tale needs no retelling by me: I merely bring it up to date by noting that, following a further judgment of the House of 11 October 2004, in the exercise of the nobile officium and of consent, the Inner House restored the interlocutor of the Extra Division of 18 December 2001 and decerned. They then granted Mr Davidson leave to appeal that interlocutor to this House.