Davidson (AP) (Appellant) v. Scottish Ministers (Respondents)(Scotland)
58. At its broadest, the issue of public importance in the appeal is whether the Scottish courts can ever grant interdict and interim interdict, or an order for specific performance and an interim order for specific performance, against the Crown. As I have explained, the issue arose at the very outset of the present proceedings when Mr Davidson sought an interim order ordaining the Scottish Ministers to secure his transfer to conditions of detention compliant with article 3 of the Convention, whether within Barlinnie or in another prison. Happily, Mr Davidson completed his sentence in 2002 and so now has no reason to seek any such order. For him, the question is academic. But for other litigants in the Scottish courts, for the Scottish Ministers and indeed for the United Kingdom Government, it is of perennial interest. The appeal presents the first opportunity that the House has had to consider the question in a Scottish appeal.
59. The issue can be put shortly. Section 21 of the 1947 Act provides:
Clearly, the provisions of section 21(1)(a) prevent the courts in Scotland from granting interdicts or orders for specific performance in some civil proceedings against the Crown. The principal question is, therefore, whether that bar applies in all civil proceedings against the Crown or only in some and, if so, in which kind of proceedings. In McDonald v Secretary of State for Scotland 1994 SC 234 the Second Division held that the bar applied in a case where a serving prisoner alleged that he had been subjected to more than 3,000 illegal searches while in prison and sought interdict and interim interdict against the Secretary of State "or those of his lawful agents or servants acting on his instructions and for whom he is responsible, from searching the pursuer without lawful authority, warrant or justifiable cause, contrary to the law of Scotland." Mr McDonald was a party litigant and had drafted his own pleadings. They were therefore not in exactly the usual form, but essentially he was claiming damages for past unlawful searches and interdict against future unlawful searches. Before the sheriff the defender's agent had submitted that the pursuer's case seemed to depend on the standing orders governing the searching of prisoners being of no effect - which would have involved judicial review of those orders in the Court of Session. The Second Division did not enter into that question, since the issue was the competency of interdict and interim interdict in the actual sheriff court action. They held that the bar in section 21(1)(a) applied in those proceedings, but left open the possibility that it might not apply in judicial review proceedings. In the present case, which is presented as a petition for judicial review, the Extra Division rejected that argument: Davidson v Scottish Ministers 2002 SC 205. The result appears to be that the bar is held to apply to all kinds of civil proceedings against the Crown in Scotland.
60. There is at least some authority to suggest that in Scotland interdict against the Crown was competent before the 1947 Act. But H Burn-Murdoch, Interdict in the Law of Scotland (1933), p 66, is anything but enthusiastic: "Although sheriffs, and public officials, such as even a Secretary of State, are sometimes made respondents to interdicts of procedure, this is rarely appropriate or necessary." He rather gives the impression that it was not regarded as good form to seek interdict in such cases. Nevertheless, if interdict was thought to be a competent remedy against the Crown, it would be somewhat surprising if a complete bar on its use had been introduced in an Act whose general purpose was "to make it easier rather than more difficult for a subject to sue the Crown", as Lord Jauncey of Tullichettle observed in British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65, 95. It is fair to say that, while holding that the bar applies, the Scottish judges have not regarded it with any great enthusiasm. The comments of Lord Weir 2002 SC 205, 227, para 18, would probably be endorsed by many.
61. Against that background it is scarcely surprising that counsel for parties bringing proceedings against the Crown have striven to find some legitimate way round the bar. It applies, of course, only in civil proceedings "against the Crown". In Beggs v The Scottish Ministers 2005 SC 342, counsel therefore argued that, for the purposes of the 1947 Act, the Scottish Ministers should not be regarded as "the Crown", but rather as "officers of the Crown". So any proceedings against the Scottish Ministers were proceedings against officers of the Crown rather than against the Crown itself. On this basis the First Division held that McDonald v Secretary of State for Scotland was distinguishable and that the bar in section 21(1)(a) did not apply. They did not, however, consider whether, on their approach, section 21(2) might be relevant. The House is to hear an appeal from that decision in due course. In the circumstances, at the hearing of this appeal, neither side presented any substantial argument on the point. For that reason, I prefer to express no opinion on it and to go directly to the interpretation of section 21.
62. The 1947 Act was passed to try to cure various problems which litigants and practitioners had been experiencing. Some 60 years later, it is not easy to see those problems as they must have appeared to people at the time. But, perhaps, as good a starting point as any is the report of the Committee on Ministers' Powers ("the Donoughmore Committee") (Cmd 4060) published in 1932. The remit of the committee embraced many topics which are not relevant for present purposes, but in connexion with the control of delegated legislation they referred, at p 62, para 14(d), to the "archaic and in some ways cumbrous and inelastic" procedure by way of prerogative order and suggested that it would be expedient to introduce a simpler, cheaper and more expeditious procedure. They returned to the subject, at pp 98-99, para 12, under the heading "The supervisory jurisdiction of the High Court of Justice." They referred to the control of what they had described, at p 88, para 8, as "the judicial and quasi-judicial powers conferred by Parliament on Ministers themselves" - terms that are reminiscent of Dicey's language in his famous article "The Development of Administrative Law in England" (1915) 31 LQR 148. The Committee declared that the wholesome jurisdiction of the High Court should be no less vigilantly exercised in the case of a Minister than in the case of inferior courts of law. They therefore regarded it as essential that there should be a simple and cheap access to the High Court in order to invoke it. They repeated their previous criticism of the existing procedure and their "recommendation in favour of the establishment of a simpler and less expensive procedure and one more suited to the needs of the modern age."
63. The committee's criticisms did not lead directly to legislation to reform the prerogative orders. Instead, within their much wider remit, the Committee on the Business of the Courts, set up in 1932 under the chairmanship of Lord Hanworth, considered Crown side procedures. In their third and final report published in 1936 (Cmd 5066), pp 5-11, the committee recommended various reforms, including reforms to proceedings in which any of the prerogative writs was sought and the abolition of informations in the nature of quo warranto. Two years later, the Administration of Justice (Miscellaneous Provisions) Act 1938 included a group of sections, 7 to 10, which were designed to implement those recommendations. They are to be found under the heading "Amendment of Law with respect to proceedings heretofore usually dealt with on the Crown side of King's Bench Division." Whether or not the measures thus enacted were a wholly satisfactory way of dealing with the problems facing litigants, the position was that by 1938 Parliament had tackled the reform of the Crown side procedures.
64. Another topic which the Donoughmore Committee considered was whether to establish a system of administrative law. Remaining faithful to the heritage of Dicey, they rejected the suggestion, at p 110, para 19. None the less, at p 112, they confessed that "under the rule of law in England the remedy of the subject against the Executive Government is less complete than the remedy of subject against subject." They then identified three "main defects" in the subject's remedies against the government in England: (a) that, owing to the peculiar procedure in cases in which the Crown was a litigant, the subject was to some extent placed at a disadvantage; (b) that there was no effective remedy against the Crown in the county court and (c) that the Crown was not liable to be sued in tort.
65. As this account shows, the committee dealt separately with Crown side proceedings and other proceedings against the Crown. The three "main defects" concerned proceedings other than Crown side proceedings. Except in relation to tort, the defects were procedural. For instance, a litigant might have a perfectly good claim in contract against the Crown but he had to proceed by the cumbersome petition of right procedure. So far as tort was concerned, in practice the Crown did much to alleviate the potential injustices, but the obiter observations of their Lordships in Adams v Naylor  AC 543 signalled that such practical expedients were not the answer and that reform was urgently needed.
66. In Scotland the situation was slightly better. The petition of right doctrine had never applied and the Crown could be sued according to the usual procedures of the Court of Session. But proceedings against the Crown could not be brought in the sheriff court. Moreover, belatedly and - in retrospect - unfortunately, in Macgregor v Lord Advocate 1921 SC 847 the Second Division had held that in Scotland too the Crown could not be held liable in delict.
67. In the 1947 Act Parliament set out, inter alia, to remedy the three "main defects" identified by the Donoughmore Committee. Part I deals with substantive law, Part II with jurisdiction and procedure in general. Part III covers judgments and execution, while Part IV contains miscellaneous and supplemental provisions. Part V governs the application to Scotland of the provisions of the Act which had been drafted with English law in mind. By common consent, the application to Scotland is anything but elegant. I need to say a little more at this stage about Parts I and II.
68. In Part I, section 1 sweeps away the petition of right and the other procedures used in England and provides that any claim can be enforced as of right by proceedings taken against the Crown for that purpose in accordance with the provisions of the Act. This section does not, of course, apply to Scotland. Section 2 subjects the Crown to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject. Since there was a need to make a similar reform for cases of delict, section 2, as translated by section 43(b), applies to Scotland. Section 3 deals with intellectual property and section 4 with the application of the law as to indemnity, contribution, joint and several tortfeasors and contributory negligence. Again, with some help in translation, that section applies to Scotland. As enacted, Part I contained a number of other important provisions dealing with various aspects of the Crown's liability to its subjects in relation to ships, docks, the post etc. They applied to Scotland, but they have since been repealed. All that needs to be said is that they were designed to set out the basis and limits of the Crown's liability to its subjects in those areas.
69. Since the old petition of right procedure and certain other procedures were being superseded, Parliament needed to make provision for a new system of procedure for actions against the Crown in England and Wales. That was the function of Part II. Scotland already had appropriate procedures in the usual forms of action and petition in the Court of Session. Therefore, only two provisions in Part II apply to Scotland. Section 13 is not relevant for present purposes. Section 21 lies at the heart of the appeal.
70. In Part V I need draw attention only to section 44 which provides that, subject to the provisions of the Act and to any enactment limiting the jurisdiction of the sheriff court, "civil proceedings against the Crown may be instituted in the sheriff court in like manner as if the proceedings were against a subject " The section goes on to give the Lord Advocate power (which has scarcely been used) to issue a certificate which has the effect of requiring certain proceedings in the sheriff court to be remitted to the Court of Session.
71. This brief survey is enough to show that in England and Wales the Act did indeed remedy the three defects identified by the Donoughmore Committee. So far as Scotland was concerned, section 2 made provision for the Crown to be liable in delict, while section 44 allowed pursuers to bring their actions in the sheriff court. Again, two obvious problems were put right.
72. The defects identified by the committee concerned the way that the Crown was treated differently from its subjects in cases where it could have been expected to be subjected to the same liabilities and procedures as a subject. So, for example, if I had a contractual claim against a shopkeeper, I could sue him by a relatively straightforward procedure in the county court or sheriff court, if I wished. But if my claim was under a contract with the Crown, in England I would have to bring petition of right proceedings in the High Court, while in Scotland I could not sue in the sheriff court. In both jurisdictions the Crown was not liable for acts which would have made an individual liable in tort or delict. Since, as I explain below, liabilities between individuals can be conveniently described as private law liabilities, what the Committee were highlighting in this part of their report were problems which litigants faced in bringing liability home to the Crown in the realm of private law. What the 1947 Act did, therefore, was to complete the programme of reform, begun with the 1938 legislation on Crown side procedures, by making changes in the substance of the private law and in the procedures used to sue the Crown in relation to its private law liabilities. In the words of a contemporary author, "On 1 January 1948, with the commencement of the Crown Proceedings Act 1947, there started a new era in Crown law. The subject has been given a remedy as of right against the Crown, both in tort and in contract, and the procedure governing litigation between subjects has, so far as possible, been applied to civil proceedings by and against the Crown": R McMillan Bell, Crown Proceedings (1948), p iii.
73. Reform of the private law and its procedures in respect of the Crown was no insignificant matter. By concentrating on judicial review, lawyers and judges today may tend to forget the historical importance of the law of tort or delict as a way of vindicating the subject's rights and freedoms. To take only the most obvious example, Entick v Carrington (1765) 19 St Tr 1030 was an action of trespass for breaking and entering the plaintiff's house and seizing his papers. As Mr Weir puts it in his peerless Casebook on Tort (10th ed) (2004), p 18, in addition to providing compensation, the other function of the law of tort is "to vindicate the rights of the citizen and to sanction their infringement. In this respect the flagship of the fleet is not negligence but trespass, protecting as it does the rights of freedom of movement, physical integrity, and the land and goods in one's possession." So, if pushed too far, the doctrine that the Crown can do no wrong and so cannot be liable in tort could have been an engine of tyranny. But actions against officers of the Crown (such as Carrington, a King's messenger) as individuals meant that the law of tort could be used to protect the liberties and property of the subject. Indeed Dicey's second meaning of the "rule of law" as a characteristic of England was "that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals": Introduction to the Law of the Constitution (10th ed) (1959), p 193. The same applied in Scotland: McDonald v Secretary of State for Scotland 1994 SC 234 is indeed a more recent case in point. What a government might therefore have to fear was that, especially in a time of emergency when it might be necessary, as a matter of urgency, to enter and take possession of lands and perhaps even to evict the owners and occupiers, the government would be faced with common law actions of trespass and assault. Of course, in practice, in later times there would usually be special emergency powers legislation to authorise such acts. That was indeed the case in both World Wars. But, even so, actions for common law trespass were not unknown.
74. For instance, in AB v Lord Advocate 1916 2 SLT 200 and 327, the complainers in a note of suspension and interdict were the proprietors of certain lands round a loch and of the loch itself. The military authorities took possession of the lands and loch in September 1915 in order to carry out works. The complainers sought interdict against the commanding officer and those acting under his orders from entering on the lands in question without the owners' consent, from erecting any buildings without the owners' consent and from blasting rocks and carrying out certain other operations. The Lord Advocate, as representing the War Office, was called for any interest he might have. He lodged answers. The defence was, of course, that the military authorities had powers under the Defence of the Realm legislation and regulations to do what they did and that the commanding officer and his men were acting in accordance with those powers. But, at first instance, the Lord Ordinary on the Bills initially granted interim interdict against the blasting and other operations. He subsequently recalled the interim interdict but passed the note. The respondents reclaimed against the passing of the note. The First Division held that, having regard to the Defence of the Realm provisions, the note must be refused. Two things are worth noticing. First, as Lord President Strathclyde pointed out, at p 328, the foundation of the proceedings was that the respondent was a wrongdoer and trespasser. The Lord President had indeed no doubt that the respondent "might have been interdicted if the complainer had been able to shew that the action was taken outwith the statute and the regulations of 1914, which have the force of statute." The other point to notice is that Lord Johnston observed, at p 329, that "the true object of the complainers [was] to strike at the War Department through Captain CD "
75. Any reform of the law of tort or delict in the 1947 Act which allowed proceedings to be taken against the Crown would only serve to increase the scope for actions of this kind. One issue that would have had to be considered by those framing the legislation, therefore, was whether injunctions or interdicts or orders of specific performance should be permitted in such circumstances, with the risk that operations of national importance might be disrupted.
76. However that may be, what I have said so far is enough to suggest that the procedural changes made in Part II of the Act were concerned with private law matters. It would follow that section 21, which is to be found in Part II, would be concerned with private law proceedings.
77. Before going any further, I must say a word about the sense in which I have used the expression "private law". As my noble and learned friend, Lord Hope of Craighead, has recalled, until recently practitioners of both Scots law and English law had comparatively little use for the categories of "public law" and "private law". The categories had been of more service to authors of legal textbooks. Significantly enough, it was in an elementary work that Ulpian contrasted publicum ius and privatum ius (D.18.104.22.168, Ulpian 1 institutionum). Justinian incorporated part of the passage into his own elementary work, Institutes 1.1.4. From there, despite the difficulties in defining their exact scope ("There is no need to pause on this," said Birks in his introduction to English Private Law (2000), p xxxvi), the terms went on to find a place in many general accounts of the law - though not, for example, in Blackstone's. Holland, Jurisprudence (13th ed) (1924), p 128, said that, when rights subsist "between subject and subject", they are regulated by private law, when "between State and subject" by public law. According to Stair, Institutions of the Laws of Scotland (2nd ed) (1693) 1.1.23, public rights are those which concern the state of the commonwealth; private rights are the rights of persons and particular incorporations. The terminology was sufficiently understood to be adopted in article XVIII of the Treaty of Union. Bankton also sees positive law as relating to public or private right: An Institute of the Laws of Scotland (1751-1753) 1.1.54. Erskine, An Institute of the Laws of Scotland (1773) 1.1.29 says that private law "is that which is chiefly intended for ascertaining the civil rights of individuals." In the opening paragraph of his Principles of Scottish Private Law (4th ed) (1988) Professor Walker summarises the position in this way:
The core idea is that private law regulates relations between individuals. I therefore use the expression "private law" simply as a convenient label for that branch of the law. But the Crown can, for example, own property and enter into leases and other types of contract with its subjects. It can also commit torts or delicts against them. When it does these things, unless statute provides otherwise, the same private law applies as between two subjects. Part II of the 1947 Act gives the procedure to be used when a subject sues the Crown in relation to such a private law matter in the English courts.
78. In his speech in M v Home Office  1 AC 377 Lord Woolf reached essentially the same conclusion by a slightly different route. He drew attention, at p 412B-D, to the definition of "civil proceedings" in section 38(2): the term "does not include proceedings on the Crown side of the King's Bench Division." By excluding Crown side proceedings from the definition of civil proceedings, Parliament also excluded the prerogative order proceedings from the definition of "civil proceedings against the Crown" in section 23(2), which governs the application of Part II, including section 21, in English law. This exclusion is, of course, readily explained by the fact that Parliament had already reformed the procedure in Crown side proceedings in 1938. Lord Woolf went on to show how the exclusion of Crown side proceedings should be taken to apply to the modern procedure for judicial review which has replaced the prerogative orders. So far as judicial review proceedings were concerned, therefore, section 21 would not apply but, he said at p 422G, "[t]he restriction provided for in section 21(2) of the Act of 1947 does, however, remain in relation to civil proceedings." In other words, the procedural provisions in Part II do not apply to judicial review proceedings against the Crown which, in English law, now largely cover public law matters: O'Reilly v Mackman  2 AC 237; Clark v University of Lincolnshire and Humberside  1 WLR 1988. The necessary conclusion is that these provisions apply to proceedings in relation to the Crown's private law obligations.
79. This is confirmed by the definition of "civil proceedings against the Crown" in section 23(2) governing the application of Part II in English law. Subsection (2)(a) refers to proceedings for the enforcement or vindication of any right or for the obtaining of any relief which, if the Act had not been passed, might have been enforced or vindicated by petition of right or monstrans de droit. The latter was a method of obtaining or recovering possession of real or personal property from the Crown. Both remedies were thus concerned with enforcing the plaintiff's private law rights. Subsection (2)(b) refers to proceedings replacing an action against the Attorney General, any Government department or any officer of the Crown as such. Again, as the use of the term "action" indicates, Parliament had in mind situations where previously, under statute, ministers or departments or officers of the Crown could have been sued in respect of civil liabilities, especially contracts. A well-known example was the Minister of Transport who, under section 26(1) of the Ministry of Transport Act 1919, as amended by Schedule 2 to the Crown (Transfer of Functions) Act 1946, could be sued "in respect of matters whether relating to contract, tort or otherwise arising in connection with his powers and duties under this Act or any enactment relating to highways, by the name of the Minister of Transport " Further details of such situations can be found conveniently in G L Williams, Crown Proceedings (1948), pp 3-5. Finally, subsection (2)(c) refers to all such proceedings as any person is entitled to bring against the Crown by virtue of this Act. This is a reference to proceedings by virtue of Part I of the Act, which are essentially of a private law nature.