House of Lords
|Session 2006 - 07|
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Beggs (AP) (Respondent) v. Scottish Ministers (Appellants) (Scotland)
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Rodger of Earlsferry. I agree with the observations made by him, and for the reasons he gives I would allow the appeal to the extent proposed by him.
LORD HOPE OF CRAIGHEAD
2. I adopt with gratitude the explanation which has been given by my noble and learned friend Lord Rodger of Earlsferry of the background to this appeal and of the circumstances which have narrowed the issues which need to be considered by your Lordships to dispose of it. For the reasons which he gives, with which I am in full agreement, I would allow the appeal and make the order that he proposes.
3. I should like to add a few observations on the question whether the First Division erred in law when on 11 March 2005 they ordered Mr Tony Cameron, Chief Executive, Scottish Prison Service, and Mr Ian D F Gunn, Governor of H M Prison, Peterhead, to attend when the case called By Order on 15 March 2005. Their Lordships did not give reasons at that stage for pronouncing an interlocutor in these terms. We do know however that senior counsel for the Scottish Ministers made it clear during the hearing on 27-28 January 2005 that they took full responsibility for the fact that the undertaking that was given by them on 5 September 2003 had been breached, and that at no time did they attempt to devolve responsibility to civil servants for its breach and for any contempt of court that had been committed. We also know that the civil servants who were named in the interlocutor were in attendance at court during that hearing to hear the debate and to offer such assistance to agents and counsel as might be necessary. So, as Mr Dewar QC explained in the course of the hearing before your Lordships, they were aware of the circumstances which had led to the breach of the undertaking. But they were not parties to the undertaking, nor were they parties to the proceedings against the Scottish Ministers.
4. The interlocutor which was pronounced by the First Division on 15 March 2005 contains a finding that the Scottish Ministers were in contempt. No reference is made in that interlocutor to the two civil servants who were named in the interlocutor of 11 March 2005. The explanation for the order that was made in Mr Gunn's case is to be found in the opinion of the court which was delivered by Lord President Cullen: 2005 CSIH 25, 2005 1 SC 342. In para 46 of that opinion the Lord President said that the Scottish Ministers would be in contempt of court if civil servants, in discharging the Scottish Ministers' functions, failed to take reasonable steps to ensure that the undertaking was adhered to, and if that failure was so gross as to demonstrate a disregard for the importance which should have been attached to the undertaking. In para 50 he said that the conduct of the civil servants, and in particular of the Governor of HMP Peterhead, Mr Gunn, was such as to meet the test which he had set out in para 46. Elaborating on this point, he described the circumstances that led the court to the conclusion that the undertaking was not taken seriously enough by them and that the Scottish Ministers were in contempt of court.
5. In para 46 of the opinion the Lord President said that the general approach which the court was taking was similar to that adopted by Woolf LJ in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd  1 WLR 926. He referred also to Lord Wilberforce's speech in Heaton's Transport (St Helen's) Ltd v Transport and General Workers' Union  AC 15. In Tuvalu at p 936E-G Woolf LJ said that where a company is ordered not to do certain acts or gives an undertaking to the like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and that if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. In Heaton's Transport Lord Wilberforce examined the position of shop stewards within the Union in relation to the taking of industrial action in breach of injunctions granted by the Industrial Court. Having noted that they were agents rather than servants, he said that this was not an important factor in that case. In each case the test to be applied is the same: was the servant or agent acting on behalf of, and within the scope of the authority conferred by, the master or principal?
6. Mr Dewar did not seek to argue that the First Division had applied the wrong test when they concluded that the Scottish Ministers were in contempt because the civil servants, and in particular, the Governor of HMP Peterhead, did not take the undertaking seriously enough. But the fact that they applied this test suggests that when they ordered Mr Gunn to attend when the case called By Order on 15 March 2003 they assumed that he was in the same position as a servant or agent in relation to the undertaking which had been given by the Scottish Ministers.
7. The court's practice where an allegation of contempt is made in the High Court of Justiciary against a newspaper or broadcaster is set out in Part B of the Memorandum by the Lord Justice General of Contempt of Court which came into force on 1 April 2003. It is the practice for representatives of the newspaper or broadcaster, such as the editor or the producer or other senior employees, to be ordered to appear in court to answer the allegation. But, as para 2 of Part B explains, an order for the personal appearance of the editor or producer should only be made where the alleged contempt is of a kind where his appearance in person is thought to be necessary so that an adequate explanation can be given or with a view to deciding what punishment is appropriate. The advice that is given in the Memorandum was not directly applicable to this case. These were civil proceedings, brought at the appellant's instance, to which different considerations apply. But it seems likely that their Lordships' familiarity with the practice in the High Court played a part in their decision to order Mr Gunn to appear. As the Lord President said in para 51, the order for his attendance was made on the basis that he was responsible for the failure to take reasonable steps to ensure that the Scottish Ministers' undertaking was complied with.
8. In my opinion two points require to be made in the light of this background. The first is that the status of civil servants is different from that of employees or agents of a body such as a company or a trade union. Civil servants are servants of the Crown, not of the ministers who are answerable to Parliament for the departments in which they serve: see Carltona Ltd v Commissioners of Works  2 All ER 560. The status of civil servants in Scotland was not affected by the devolution settlement. The Scottish Ministers are answerable to the Scottish Parliament, and to the court for any undertakings that they may give or any peremptory orders that may be made against them, for the actions of officials within the various branches of the Scottish Executive. But the officials are not their servants or agents. It is the fact that they perform their functions under direction and control of the Scottish Ministers that makes the Scottish Ministers answerable for what they do or fail to do.
9. Ministerial responsibility for acts and failures of civil servants in their departments cannot be delegated. So where an undertaking is given such as that by the Scottish Ministers in this case, responsibility to the court for its observance is that of the Scottish Ministers, not of the officials or other civil servants within the Scottish Executive. It is the Scottish Ministers, not the civil servants, who are answerable for any breach of the undertaking. This principle applies without exception, irrespective of the various ways in which the breach may attract public criticism or penalty. The effect of the interlocutor of 11 March 2005 was to require the Mr Gunn to attend personally and in public when the court delivered its opinion in which his conduct was criticised, under pain of punishment if he failed to do so. This was a breach of the principle which places the responsibility for such acts and failures exclusively on the ministers.
10. The second point is a necessary corollary to the first. While the mere fact that an undertaking has been given to the court by the Scottish Ministers does not expose the officials or other civil servants to liability should it be breached, they do not enjoy a complete immunity from the consequences of their own actions. This was the point which was explored by Woolf LJ in Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd  1 WLR 926, 936-938. The director of a company who is aware of the order or undertaking and wilfully fails to take the steps which are necessary to give effect to the order or undertaking can be punished for contempt. In that event it is his own culpable conduct which exposes him to that liability.
11. I would apply the same principle to civil servants who, in the knowledge that an order has been made against or that an undertaking has been given by ministers, wilfully act or fail to act in breach of it. Such conduct in wilful and knowing breach of the order or undertaking exposes them to the risk of being held in contempt. But basic rules of fairness require that they must be given an opportunity to answer the allegation before any steps are taken against them personally. Service on them of the minute alleging breach and the opportunity to be separately represented when answering the allegation are minimum requirements. Neither of those steps were taken in Mr Gunn's case.
12. In para 46 of the court's opinion the Lord President said that it was not necessary in this case for it to be shown that the civil servants acted with the intention of the undertaking being breached. That was an accurate statement of the law as it affected the position of the Scottish Ministers. But the fact that their Lordships approached the case in this way serves only to underline the point that it was not open to the court to order Mr Gunn to attend when it was delivering its judgment on the allegation of contempt against them. The fact that the undertaking had been breached was, of course, a very serious matter. It was important that the authority of the court to which the undertaking was given should be fully and clearly recognised. Their Lordships' concern that this fact should be brought to the notice of the civil servants whose conduct had led to this regrettable situation was entirely proper and understandable. But an assurance that this would be done could have been sought from counsel for the Scottish Ministers, and I do not think that it could properly have been withheld in this case. The error in Mr Gunn's case lay in the fact that the court subjected him to an order for which, as he was not a party to the proceedings and no allegation of contempt had been made against him personally, there was no lawful authority.
13. Different considerations apply in Mr Cameron's case. I agree with Lord Rodger, for the reasons that he gives, that it was within the powers of the court to order a senior civil servant to attend court to represent the Scottish Ministers when it was delivering its judgment in proceedings brought against them for contempt. But a compulsory order should not be made against a civil servant, or indeed anyone else, unless there is a good reason for doing so. The court misdirected itself when it said that Mr Cameron should be regarded for its purposes as representing the alter ego of the Scottish Ministers. Responsibility for breach of the undertaking lay with the Ministers alone and not with him, and he was not a party to the proceedings. The court was, of course, entitled to look for an assurance that its judgment would be brought to the personal attention of the Scottish Ministers. Mr Cameron was the obvious person, as the Chief Executive of the Prison Service, to whom to look for this to be done. The making of an order against him would have been justified if the court was satisfied that this was needed to ensure his attendance when the judgment was delivered and to ensure that, through him personally, its contents would be brought to the attention of the Scottish Ministers. But his willingness to do take these steps without being ordered to do so was never tested at a hearing at which he was represented, as it should have been, before the order was made for his attendance. This was a misuse of the power, and the court erred in law when it exercised it in these circumstances.
LORD SCOTT OF FOSCOTE
14. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry and for the reasons they give, with which I am in full agreement, I would allow the appeal to the extent proposed by Lord Rodger.
LORD RODGER OF EARLSFERRY
15. In September 2001 William Beggs, the respondent in this appeal, was convicted of murder and sentenced to life imprisonment. He appealed against his conviction and sentence but, the House was informed, his appeal has yet to be heard.
16. In terms of his sentence the respondent has been detained, for the most part, in HM Prison Peterhead and, for shorter periods, in HM Prison Edinburgh. In connexion with his appeal against conviction and sentence the respondent has corresponded with his legal advisers. He has also corresponded with solicitors about judicial review proceedings relating to the conditions of his detention in prison. In addition he has lodged complaints about those conditions with the Scottish Prison Complaints Commissioner ("the Commissioner") and this has resulted in correspondence between the respondent and the Commissioner.
17. On a number of occasions, starting in about February 2003, letters from the respondent's legal advisers and from the Commissioner were opened by prison officers at Peterhead, even though, as the Scottish Ministers ("the Ministers") admit, they should not have been. Although the respondent received official apologies and assurances that it would not happen again, the incidents continued. In September 2003 the respondent therefore lodged a petition for judicial review in which he sought, inter alia, interdict and interim interdict against "the Scottish Ministers and the Governor of HM Prison Peterhead from requiring the petitioner, during his present period of detention in the said prison, to open or have opened in the presence of a prison officer or prison officers, except on due cause shown, all and any privileged correspondence sent to him while detained in HM Prison Peterhead."
18. On 5 September 2003 the judicial review petition called before the Lord Ordinary (Lord Johnston). In the course of the hearing counsel for the Ministers, who are the appellants in the present appeal, gave an undertaking to the court. The relevant part for present purposes was in these terms:
The Lord Ordinary granted an order for service and assigned a date for the first hearing, but refused the motion for interim interdict on the ground that interdict against the Crown was not competent in the light of the decision of the Second Division in McDonald v Secretary of State for Scotland 1994 SC 234 on the effect of section 21 of the Crown Proceedings Act 1947 ("the 1947 Act"). In any event, having regard to the undertaking, the balance of convenience would not have favoured granting interim interdict. The Lord Ordinary granted leave to reclaim and on 23 September 2003 the Second Division held that the case was suitable for early disposal.
19. Despite the undertaking, it appears that a further incident occurred in September 2003 and, when the respondent was transferred to HM Prison Edinburgh in May 2004, letters were opened there. The terms of the undertaking did not cover that gaol. On 19 May 2004 the Ministers gave a further undertaking, covering HM Prison Edinburgh and also concerning what would happen if the respondent were moved to a prison other than Peterhead or Edinburgh. The details are not material for present purposes. By 8 June 2004 the respondent had returned to Peterhead and the minute of proceedings of a By Order hearing on that date recorded that counsel for the appellants had "confirmed that undertaking given in respect of Peterhead was still extant." This was confirmation that the Ministers regarded themselves as still bound by the undertaking relating to Peterhead given to the Lord Ordinary on 5 September 2003.