Davidson v Scottish Ministers

The House applied the "fair-minded and informed observer" test (Porter v Magill) to an allegation of apparent bias where a judge (Lord Hardie) had previously, as Lord Advocate, publicly promoted provisions of the Scotland Bill bearing on the effect of section 21 of the Crown Proceedings Act 1947. The court held that where a judge previously played an active, public, legislative or executive role in promoting the very position later relied upon in court, the fair-minded and informed observer might conclude there was a real possibility of lack of objective impartiality. The House therefore upheld the Second Division's conclusion that the Extra Division's interlocutors were vitiated by apparent bias and that a remedy was required; but it also considered the appropriate procedural remedy and remitted the question whether leave to appeal to the House should be granted to the Inner House for reconsideration in the exercise of the nobile officium.

Background and facts:

• From April to August 2001 the petitioner (Mr Davidson) was detained at HMP Barlinnie. He petitioned the Court of Session in October 2001 claiming (i) a declarator that the conditions of his detention were incompatible with Article 3 of the European Convention on Human Rights, (ii) an order ordaining the Scottish Ministers to secure his transfer to conditions compliant with Article 3 (including an interim order), and (iii) damages.
• The Lord Ordinary refused interim coercive orders on the ground, among others, that section 21 of the Crown Proceedings Act 1947 precluded coercive orders against the Crown or its officers; leave to reclaim was granted.
• An Extra Division (including Lord Hardie) heard the reclaiming motion and refused it on 18 December 2001; leave to appeal to the House of Lords was refused on 20 December 2001.

Procedural posture and issue:

• After discovering Hansard records of Lord Hardie's public statements, when he had been Lord Advocate and a Minister promoting the Scotland Bill, asserting that section 21 prevented courts from making orders for specific performance against Scottish Ministers, the petitioner petitioned the nobile officium of the Court of Session to set aside the Extra Division interlocutors for apparent bias.
• The Second Division (11 September 2002) set aside the Extra Division interlocutors and ordered a rehearing, holding that a fair-minded and informed observer would conclude there was a real possibility of bias.
• The Scottish Ministers appealed to the House of Lords; the petitioner cross-appealed against the form of remedy adopted by the Second Division.

Court's reasoning:

The House applied the objective test from Porter v Magill: whether the fair-minded and informed observer would conclude there was a real possibility that the tribunal was biased. The court examined comparative authorities (including Procola, McGonnell and Pabla Ky) and emphasised that prior legislative or executive involvement in the very matter under adjudication is capable of creating an appearance of lack of impartiality.

Having regard to the documented, active and public role played by Lord Hardie in promoting the Scotland Bill and the amendments to the Crown Proceedings Act which directly bore on the issues before the Extra Division, the House concluded the Second Division was entitled to find a real possibility of bias. Non-disclosure before the hearing further coloured the appearance of impartiality.

On remedy, the House held that the Second Division's order should be adjusted so that the interlocutor of 18 December 2001 could be left standing (by recalling only the interlocutor of 20 December 2001) to permit the Inner House to reconsider, in the exercise of the nobile officium, whether to grant leave to appeal to the House of Lords.

Relief sought:

• Declarator of incompatibility with Article 3; coercive order (specific performance/transfer) including interim relief; damages; and, after the Extra Division decisions, relief by way of setting aside interlocutors for apparent bias and leave to appeal.

Appeal dismissed. The House rejected the Scottish Ministers' appeal against the Second Division's decision to set aside the Extra Division interlocutors for apparent bias. The House agreed that the fair-minded and informed observer could conclude there was a real possibility of lack of objective impartiality given Lord Hardie's prior active role in promoting the relevant amendments to the Scotland Act and his public statements about section 21. The House remitted the procedural question of whether leave to appeal to the House should be granted to the Inner House to reconsider in the exercise of the nobile officium (cross-appeal allowed in part).

Interlocutors of the Extra Division (18 and 20 December 2001) in Davidson v Scottish Ministers (reported as Davidson v Scottish Ministers 2002 SC 205) were set aside by the Second Division on 11 September 2002 (Davidson v Scottish Ministers (No 2) 2003 SC 103). The Scottish Ministers appealed to the House of Lords ([2004] UKHL 34); the House dismissed the appeal and remitted the leave-to-appeal question to the Inner House of the Court of Session in the exercise of the nobile officium. Prior first-instance interlocutor by the Lord Ordinary refusing interim orders (Lord Johnston) was the foundation for the reclaiming motion.