Davidson (AP) (Appellant) v. Scottish Ministers (Respondent) (Scotland)(HTML version)

The restrictions imposed by section 21 of the Crown Proceedings Act 1947 do not apply to proceedings invoking the supervisory jurisdiction of the Court of Session in respect of acts or omissions of the Crown or its officers. Scottish courts may therefore grant coercive remedies, including interim interdict and specific performance, in such judicial review proceedings.

The prohibition in section 21(1)(a) instead concerns proceedings enforcing private-law rights against the Crown, including rights arising under the law of obligations or property. In those proceedings, the court may grant declaratory relief but may not grant interdict or specific performance. This construction preserves the intended equivalence between remedies available against government in Scotland and England.

The appellant, while imprisoned at Barlinnie, alleged that overcrowding, inadequate sanitation and deficient activities amounted to treatment contrary to article 3 of the European Convention on Human Rights. He petitioned for judicial review, seeking declarator, damages and an order requiring the Scottish Ministers to transfer him to Convention-compliant conditions.

The Lord Ordinary refused interim coercive relief as incompetent under section 21 of the Crown Proceedings Act 1947. An Extra Division refused the reclaiming motion: 2002 SC 205. Although the appellant had left prison, the competency issue remained one of public importance.

The central question was whether judicial review proceedings invoking the Court of Session's supervisory jurisdiction were “civil proceedings” within section 21, so that interdict or specific performance against the Crown or its officers was prohibited.

1. Appeal allowed unanimously. Lord Nicholls delivered the principal analysis. Lord Hope and Lord Rodger gave supporting reasons; Lord Carswell and Lord Mance agreed with the result and the central construction. The interlocutor of the Extra Division was recalled. No declarator was required because it would have stated only an abstract proposition of law without practical effect.

2. Per Lord Nicholls, section 21 of the Crown Proceedings Act 1947 did not apply to proceedings invoking the supervisory jurisdiction of the Court of Session in respect of acts or omissions of the Crown or its officers. The 1947 Act expressly excluded English Crown-side proceedings, the predecessors of judicial review, from “civil proceedings”. Parliament could not have intended Scottish ministers to enjoy an immunity from coercive judicial review remedies which did not exist in England and had not previously existed in Scotland. The provision therefore had to be read by analogy so as to preserve substantially uniform remedies across Great Britain.

3. Per Lord Hope, judicial review proceedings against the Crown, including the Crown in right of the Scottish Administration, or against an officer acting as such, were outside both section 21(1) and section 21(2). The restriction in section 21(1)(a) applied instead where a remedy was sought against the Crown under Scots private law, particularly the law of obligations or property.

4. Per Lord Rodger, the words “proceedings between subjects” confirmed that section 21 was directed to private-law liabilities of a kind ordinarily arising between individuals. The court could not grant interim or final interdict or specific performance in private-law proceedings against the Crown. Section 21 created no bar in proceedings based on the Crown's public-law duties. The reasoning in McDonald v Secretary of State for Scotland 1994 SC 234 was disapproved, although its result was correct because that action concerned damages and prospective restraint for alleged assaults and was therefore a private-law delictual action.

5. Lord Rodger and Lord Mance expressed reservations, without deciding, about Lord Woolf's obiter interpretation of section 21(2) in M v Home Office [1994] 1 AC 377. The precise position of Scottish Ministers as the Crown or as officers of the Crown, and the effect of section 57(2) of the Scotland Act 1998, were left for a case in which those questions had been fully argued.

1. House of Lords: Allowed the appeal unanimously and recalled the interlocutor of the Extra Division: [2005] UKHL 74.
2. Inner House of the Court of Session: Following restoration of the relevant interlocutor, granted leave to appeal. The substantive Extra Division decision had refused the reclaiming motion: 2002 SC 205.
3. Lord Ordinary: Refused interim coercive relief as incompetent under section 21 of the Crown Proceedings Act 1947: 2002 SCLR 166.