Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)

A judge may appear biased where, as a government law officer, the judge previously promoted legislation and publicly committed the Government to a view about its effect which is directly relevant to an issue later adjudicated. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.

The nobile officium may provide machinery for exceptional or unforeseen circumstances, but it cannot defeat or extend Parliament’s intention. Where statute commits leave to appeal exclusively to the Inner House, the House of Lords cannot itself grant leave or direct that leave be granted.

A prisoner sought judicial review of detention conditions and an interim order requiring the Scottish Ministers to transfer him. The Lord Ordinary and an Extra Division held that section 21 of the Crown Proceedings Act 1947 precluded a coercive order against the Ministers. The Extra Division also refused leave to appeal.

After discovering that Lord Hardie, a member of the Extra Division, had previously promoted the Scotland Bill as Lord Advocate and had stated in Parliament that section 21 protected Scottish Ministers from specific performance, the prisoner petitioned the nobile officium. The Second Division set aside both Extra Division interlocutors for apparent bias and ordered a rehearing: Davidson v Scottish Ministers (No 2) 2003 SC 103.

The Ministers appealed on apparent bias. The prisoner cross-appealed against the refusal to facilitate an appeal to the House of Lords on the underlying section 21 issue.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech, with which Lord Woolf, Lord Nicholls, Lord Hope and Lord Cullen agreed. The applicable test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. It concerned objective impartiality and did not impugn Lord Hardie’s honour or integrity.

2. Per Lord Bingham, Lord Hardie had not merely expressed a legal opinion in a former professional capacity. As Lord Advocate and a Government Minister, he had actively promoted the Scotland Bill and assured Parliament that section 21 of the Crown Proceedings Act 1947 prevented specific performance against the Scottish Executive. The effect of that section was the very issue later before the Extra Division. An informed observer could conclude that there was a real possibility that he would subconsciously strive to avoid undermining those assurances.

3. Per Lord Hope, prior legislative membership or political activity does not itself establish apparent bias. There must be a sufficiently close relationship between the earlier words or conduct and the issue later adjudicated. The observer considers the circumstances broadly and objectively. The importance of the judicial oath was relevant but could not exclude every legitimate doubt. Lord Cullen emphasised that disqualification arose from Lord Hardie’s governmental role in promoting protection from coercive judicial review, not simply from expressing an opinion.

4. Per Lord Bingham and Lord Hope, timely disclosure of relevant former activity enables objections to be tested before the hearing and is itself a badge of impartiality. Non-disclosure may colour the informed observer’s assessment, although it may arise for entirely honourable reasons.

5. Cross-appeal allowed unanimously. Per Lord Hope, section 40(1)(b) of the Court of Session Act 1988 commits leave to appeal from an interlocutory Inner House judgment exclusively to the Inner House. The House of Lords could neither grant leave itself nor direct the Inner House to grant it. The nobile officium may provide machinery in exceptional or unforeseen circumstances, but cannot defeat or extend a statutory intention.

6. The question whether leave should be granted was remitted to the Inner House for reconsideration under the nobile officium. The Second Division’s interlocutor of 11 September 2002 was set aside. The Extra Division’s interlocutor of 18 December 2001 was left standing so that it could be appealed if leave were granted, while the refusal of leave dated 20 December 2001 was recalled. The Ministers were ordered to pay the prisoner’s costs in the House.

1. House of Lords: Dismissed the Scottish Ministers’ appeal, allowed the prisoner’s cross-appeal and remitted the question of leave to appeal for reconsideration by the Inner House.
2. Second Division of the Court of Session: In Davidson v Scottish Ministers (No 2) 2003 SC 103, unanimously set aside the Extra Division’s interlocutors of 18 and 20 December 2001 for apparent bias and ordered a rehearing, but refused to grant leave to appeal to the House of Lords.
3. Extra Division of the Court of Session: In Davidson v Scottish Ministers 2002 SC 205, unanimously refused the reclaiming motion concerning the competency of specific performance against the Scottish Ministers. It later refused leave to appeal by a majority, Lord Weir dissenting.
4. Lord Ordinary: Refused interim coercive and declaratory orders, holding among other matters that section 21 of the Crown Proceedings Act 1947 precluded a coercive order against the Scottish Ministers.