Beggs (AP) (Respondent) v. Scottish Ministers (Appellants) (Scotland)

A court which has found ministers in contempt may require a senior civil servant to attend when judgment is delivered as their representative. Before making such an order, however, the court must explain the proposed requirement, hear representations and state why attendance is required.

An official who is not a party cannot be subjected to a personal sanction for conduct contributing to ministerial contempt without warning and an opportunity to answer the allegation. Individual liability for contempt requires the official’s own knowing and wilful breach and observance of basic procedural fairness.

A prisoner brought judicial review proceedings after prison officers repeatedly opened protected correspondence. The Scottish Ministers undertook that specified correspondence would not be opened, but the undertaking was subsequently breached because relevant prison staff had not been told of it.

The First Division found the Ministers in contempt and, of its own motion, ordered the Chief Executive of the Scottish Prison Service and the Governor of HM Prison Peterhead to attend when judgment was delivered. Its decision was reported at [2005] CSIH 25.

The Ministers abandoned their challenge to the contempt finding. The remaining issue was whether the First Division had erred by ordering the two civil servants to attend without prior notice or an opportunity to make representations.

1. Appeal allowed unanimously to the limited extent pursued. Lord Rodger delivered the leading speech, with which Lord Nicholls, Lord Hope, Lord Scott and Lord Mance agreed. The interlocutor of 11 March 2005 was recalled so far as it required the attendance of the two civil servants.

2. Per Lord Rodger, once ministers had been found in contempt, the court was entitled in principle to require an appropriately senior civil servant to attend as their representative when judgment was delivered. The relationship between ministers and officials recognised in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 supported that competence. The court should first have raised the proposal with counsel, explained its purpose and allowed representations. Any resulting order should also have stated why attendance was required. The unexplained order against the Chief Executive was therefore procedurally improper.

3. Per Lord Rodger, the Governor had not been made a party or separately represented. Although his conduct was relevant to deciding whether the Ministers were in contempt, a finding against the Ministers was not a finding of contempt against him. The attendance order singled him out because of his personal conduct and therefore operated as a mild sanction. Elementary fairness required advance warning and an opportunity to defend himself before even that sanction could be imposed.

4. Lord Hope added that civil servants are servants of the Crown, not servants or agents of ministers. Responsibility to the court for observance of a ministerial undertaking rests with ministers. An official may nevertheless incur personal liability by knowingly and wilfully acting or failing to act in breach of an order or undertaking. The official must first be served with the allegation and afforded an opportunity for separate representation.

5. Per Lord Rodger, the effect of devolution was neutral in relation to what constitutes civil proceedings against the Crown. The House declined to determine the wider scope of section 21 of the Crown Proceedings Act 1947. Its earlier decision established that section 21(1) does not apply to judicial review proceedings, but these observations were expressly obiter because the appeal against the contempt finding had been abandoned.

6. The Scottish Ministers were ordered to pay the respondent’s costs in the House, including the costs of the hearing and two junior counsel.

1. House of Lords: The appeal was allowed unanimously to the extent pursued. The interlocutor ordering the two civil servants’ attendance was recalled. The Ministers’ abandoned challenge to the finding of contempt was not determined.

2. First Division of the Court of Session: In [2005] CSIH 25, 2005 1 SC 342, the court found the Scottish Ministers in contempt for breach of their undertaking. It imposed no penalty but ordered the Chief Executive of the Scottish Prison Service and the Governor of HM Prison Peterhead to attend when judgment was delivered.

3. Lord Ordinary: The Lord Ordinary refused interim interdict, considering it incompetent under section 21 of the Crown Proceedings Act 1947, but granted leave to reclaim. The Ministers had given the undertaking whose later breach generated the contempt proceedings.