Davidson v Scottish Ministers (Scotland)

The House of Lords held that, as applied in Scotland, the expression "civil proceedings" in section 21 of the Crown Proceedings Act 1947 does not include proceedings invoking the supervisory jurisdiction of the Court of Session (judicial review) in respect of acts or omissions of the Crown or its officers. Section 21 therefore does not bar Scottish courts from making coercive remedies (interdict or orders for specific performance) in judicial review proceedings against the Scottish Ministers. The court read section 21 in light of the Act's purpose to harmonise remedies between England and Scotland and to confine the Act's procedural changes primarily to private law proceedings; the proviso in section 21(1)(a) was held to apply to private-law claims (eg contractual, proprietary, delictual) but not to public-law supervisory claims.

This was an appeal from interlocutors of the Court of Session refusing interim coercive relief sought by a prisoner, Mr Scott Davidson, who alleged that conditions in Barlinnie Prison violated article 3 of the European Convention on Human Rights. The petitioner sought declarators, an order ordaining the Scottish Ministers to secure transfer to Convention-compliant conditions (interim and final) and damages. The Lord Ordinary refused interim relief on the basis of section 21 of the Crown Proceedings Act 1947; an Extra Division dismissed the reclaiming motion and the matter proceeded to the House of Lords.

(i) Nature of the claim: a petition for judicial review invoking the Court of Session's supervisory jurisdiction, seeking coercive relief (an order ordaining transfer to compliant conditions) together with declarators and damages; pleaded statutory bases included Prisons (Scotland) Act 1989 s 3(1), alleged incompatibility under section 6 of the Human Rights Act 1998 and lack of power under section 57(2) of the Scotland Act 1998.

(ii) Issues framed: whether section 21 (and related provisions) of the Crown Proceedings Act 1947, as applied in Scotland, treats judicial review proceedings as "civil proceedings" so as to preclude Scottish courts from granting interdict or orders for specific performance against the Crown or an officer of the Crown; whether the Act was intended to and should produce a different scope of remedies in Scotland than in England; and the proper construction of the provisos in section 21.

(iii) Reasoning and conclusions: the House analysed the history and purpose of the 1947 Act and its Parts, emphasising that Part II and section 21 were primarily concerned with remedies in private-law proceedings and with harmonising procedure and remedies between England and Scotland. The phrase "civil proceedings" in section 21 was to be read, by analogy with the exclusion of Crown-side proceedings in English law, as not including supervisory judicial review proceedings in Scotland concerning the Crown or its officers. Proviso (a) to section 21(1) therefore applies to private-law actions (obligations and property) but not to public-law supervisory proceedings. Consequently the Scottish courts retain power in judicial review to grant coercive remedies against the Scottish Ministers. The House allowed the appeal and recalled the interlocutor below.

Appeal allowed. The House held that, in Scotland, references to "civil proceedings" in section 21 of the Crown Proceedings Act 1947 are to be read as not including proceedings invoking the supervisory jurisdiction of the Court of Session in respect of acts or omissions of the Crown or its officers; the restrictive provisos in section 21(1)(a) and section 21(2) apply to private-law proceedings (obligations and property) but do not bar coercive remedies in public-law judicial review proceedings. This construction gives effect to the Act's harmonising purpose and avoids producing a less favourable position for Scottish litigants than for those in England.

Petition for judicial review presented in the Court of Session (24 October 2001). Lord Ordinary (Johnston) refused interim relief (26 October 2001) (reported 2002 SCLR 166). An Extra Division dismissed the reclaiming motion (18 December 2001) (reported 2002 SC 205). Following procedural steps and prior consideration by the House (including [2004] UKHL 34 and material reported at 2005 SC (HL) 7), the appeal was heard by the House of Lords and allowed ([2005] UKHL 74).