Beggs v. Scottish Ministers (Scotland)

The House allowed the appeal in part and recalled the interlocutor of 11 March 2005 insofar as it ordered the personal attendance of two senior civil servants at a By Order hearing. The court reaffirmed the principle that ministerial responsibility for the acts and omissions of civil servants is personal to the ministers and cannot be delegated, but made clear that civil servants may in some circumstances be liable for contempt if they wilfully and knowingly act or fail to act in breach of a court order or undertaking. The court held that orders compelling the personal attendance of civil servants must be exercised with care: affected officials must be given prior notice, the opportunity to be separately represented, and reasons for the order should be explained; otherwise the order is procedurally unfair and an abuse of power.

Background and parties: William Beggs, detained on a life sentence, brought judicial review proceedings after repeated opening of privileged correspondence by prison officers. The Scottish Ministers had given an undertaking on 5 September 2003 about handling certain correspondence. Despite assurances, further breaches occurred at HM Prison Peterhead. Beggs sought, inter alia, contempt proceedings for breach of the undertaking.

Procedural history: The matter proceeded in the Court of Session. The First Division found the Scottish Ministers in contempt and, by interlocutor of 11 March 2005, ordered the attendance at a By Order hearing of Mr Tony Cameron (Chief Executive, Scottish Prison Service) and Mr Ian D F Gunn (Governor, HMP Peterhead). The Ministers appealed to the House of Lords. The appeal narrowed to the question whether the First Division erred in ordering Messrs Cameron and Gunn to attend.

Issues:

• Whether the First Division was entitled to order the personal attendance of the named civil servants when they were not parties and had not been given prior notice to answer allegations directed at them.
• How the principle of ministerial responsibility and the position of civil servants bear on orders and sanctions in contempt or related proceedings.
• Ancillary question as to the appropriate scope of "civil proceedings against the Crown" in light of devolution (treated obiter and not fully determined).

Court's reasoning: The House accepted that ministers are responsible to the court for undertakings given by them and that, insofar as appropriate, a senior civil servant may attend to represent ministers in court under Carltona principles. However, ministerial responsibility is not delegable: officials are servants of the Crown, not of the ministers personally. Where a civil servant's own culpable conduct might expose him to contempt liability, basic fairness requires that he be made a party, served with the minute alleging breach, and given an opportunity to be separately represented. The First Division erred in ordering Mr Gunn's attendance in a way that singled him out without such prior procedural safeguards; it also erred in ordering Mr Cameron's attendance without first discussing the requirement with counsel and explaining reasons, thereby taking the civil servants by surprise. The House therefore recalled the interlocutor insofar as it required the attendance of those two officials. The House declined to expand on the scope of section 21 of the Crown Proceedings Act 1947 in Scots law, noting that Davidson v Scottish Ministers had already resolved the principal related point.

Appeal allowed in part. The House recalled the interlocutor of 11 March 2005 insofar as it ordered the attendance of Mr Tony Cameron and Mr Ian D F Gunn because the First Division had misused its power and failed to observe basic procedural fairness when making those orders. The court affirmed that ministers remain responsible for officials' acts but that civil servants may, if wilful and knowing, be liable for contempt; however, they must be given notice and an opportunity to answer before personal measures are taken against them.

Appeal from the First Division, Court of Session (Scotland) (opinion reported as 2005 CSIH 25; 2005 1 SC 342). The case reached the House of Lords as [2007] UKHL 3. Related authority considered: Davidson v Scottish Ministers [2005] UKHL 74; [2006] SC (HL) 41.