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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidson, Re Application For Judicial Review [2001] ScotCS 293 (18 December 2001)
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Cite as: [2001] ScotCS 293, 2002 SLT 420, 2002 SC 205

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Hardie

Lord Weir

 

 

 

 

 

 

 

 

 

P1199/01

OPINION OF LORD MARNOCH

in

RECLAIMING MOTION

in

PETITION

of

SCOTT DAVIDSON

Petitioner;

for

Judicial Review of a decision to continue to detain the petitioner in inhuman and degrading prison conditions, contrary to Article 3 of the European Convention on Human Rights

 

______

 

 

Act: O'Neill, Q.C., Collins; Drummond Miller, W.S.

Alt: Brailsford, Q.C., Mure; R. Henderson Solicitor for Scottish Ministers

18 December 2001

[1] This is a reclaiming motion against an interlocutor pronounced by the Lord Ordinary (Lord Johnston) on 26 October 2001 in so far as it refused the petitioner's motion for an interim order ordaining the Scottish Ministers to secure the transfer of the petitioner (then a prisoner in H.M. Prison, Barlinnie, Glasgow) to conditions of detention compliant with Article 3 of the European Convention on Human Rights. The Lord Ordinary refused to grant that order on the grounds (1) that it was incompetent under section 21 of the Crown Proceedings Act 1947, (2) that he was not satisfied that the petitioner's pleadings disclosed a prima facie case and (3) that the balance of convenience was, in any event, against the making of the order sought. On 31 October 2001, in circumstances which are not entirely clear, an Extra Division of the Court appointed the case to the Summar Roll "for hearing on the matter of competency" but, before us, it became rapidly apparent that, without entering into the other matters covered by the Lord Ordinary's opinion, it would be impossible to allow the reclaiming motion, whatever its merits on that aspect of the case. In these circumstances the petitioner was allowed to amend the petition, inter alia, by inserting as the first and second Declarators sought:

"(a) declarator that an order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention (whether final or interim) may competently be made in proceedings by way of application to the supervisory jurisdiction of the Court of Session under Rule of Court 58, and is not precluded by operation of section 21 of the Crown Proceedings Act 1947;

(b) declarator that an order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention under section 45(b) of the Court of Session Act 1988 (whether final or interim) may competently be made, and is not precluded by the operation of section 21 of the Crown Proceedings Act 1947;".

and further, by adding as new first and second pleas in law:

"1. An order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention (whether final or interim) being competent in proceedings by way of application to the supervisory jurisdiction of the Court of Session under Rule of Court 58 and not being precluded by operation of section 21 of the Crown Proceedings Act 1947, declarator should be pronounced as craved;

2. An order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention under section 45(b) of the Court of Session Act 1988 (whether interim or final) being competent and not precluded by the operation of section 21 of the Crown Proceedings Act 1947, declarator should be pronounced as craved."

Since it was apparent that the Lord Ordinary would have repelled these new pleas in law the reclaiming motion was allowed to proceed as directed towards them alone. Even so, I am conscious that the new Declarators sought come close to being bare Declarators of general law.

[2] By way of preliminaries, it is also appropriate to note that there are, as I see it, at least two other aspects of doubtful competency arising out of the fact that in this case the petitioner chose to eschew recourse to the procedure for complaints by prisoners set out in Rules 104 et. seq. of the Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (as amended). These culminate with referral of a complaint, if need be, to the Prison Governor. Had this procedure been followed there is, I think, little doubt that the Governor's decision, if adverse to the petitioner, would have been subject to judicial review. Instead, however, what happened was that the solicitors for the petitioner wrote direct to the Prison Governor on 11 September 2001 complaining of the prison conditions and formally requesting a transfer to "conditions which are compatible with his [the petitioner's] Article 3 Convention rights", this being, of course, a reference to the rights conferred by Article 3 of the European Convention on Human Rights. The letter is produced as No. 6/1 of process and we were advised by counsel appearing for the Scottish Ministers that a reply was still being drafted when the raising of the present petition was intimated to the Scottish Ministers on 23 October 2001. A hearing was then arranged for either 25 or 26 October 2001 when, after pronouncing a first order for intimation and service, the Lord Ordinary refused the interim order referred to above. A reclaiming motion having been marked, no Answers to the petition have been lodged, as yet, by the Scottish Ministers. Nonetheless, they were represented both before the Lord Ordinary and before us, and I will hereinafter refer to them as "the respondents".

[3] For present purposes what emerges from all this is that the petition before us is directed against the Scottish Ministers by virtue of the vesting in them of "the general superintendence of prisons" under section 3(1) of the Prisons (Scotland) Act 1989 and is based solely on an alleged breach by them of their duty under both section 57(2) of the Scotland Act 1998 and section 6(1) of the Human Rights Act 1998 not to act in a manner incompatible with any of the "Convention rights" including Article 3. At least that was how the matter was explained to us at some length by junior counsel for the reclaimer and, although at a very late stage in the proceedings senior counsel sought in some way to disown or modify that explanation, it provides, I believe, the only possible rationale for the whole layout and substance of the petition including, in particular, the substance of the Declarators sought and the form and substance of the pleas-in-law tabled.

[4] In the situation as above described counsel for the respondents recognised that there was a serious question as to whether the petitioner could be said to have exhausted his statutory remedies before having recourse to the present proceedings, and a further question, no less serious, whether the petition in its present form was truly an application to the supervisory jurisdiction of the court as that was defined in West v. Secretary of State for Scotland 1992 SC 385. On the latter question counsel reminded the court of a passage at the bottom of p. 399 of the Session Cases Report where the Lord President (Hope) says this:

"The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary to enquire whether the decision of the inferior body or tribunal is administrative in character. The essential point is that a decision-making function has been entrusted to that body or tribunal which it can be compelled by the court to perform. As counsel for the respondent pointed out, the tripartite relationship in these arrangements is significant. The essential feature of all these cases is the conferring, whether by statute or private contract, of a decision-making power or duty on a third party to whom the taking of the decision is entrusted but whose manner of decision-making may be controlled by the court."

[5] Nonetheless, counsel for the respondents were unable to say whether, in any Answers lodged, a plea to the competency of the proceedings would actually be taken and, since the matter may not be entirely free from doubt, I do not in this instance consider it appropriate that the court should ex proprio motu require the competency of the present proceedings to be fully argued and decided. I wish, however, most distinctly to reserve my own opinion on all three aspects of the doubtful competency of this petition. After all, if the present petitioner were correct in his approach, it would follow that any alleged breach of Convention rights would ipso facto be susceptible to proceedings by way of judicial review. I recognise, of course, that judicial review is, at base, only a procedure but it is nonetheless a procedure which gives litigants distinct advantages over other litigants having recourse to the court in terms of time-tabling and which confers a measure of flexibility not thought appropriate for ordinary actions. In any event, and whatever else, the discussion on this aspect of the case serves to emphasise that the substantive issues which are claimed to be susceptible to judicial review can vary very considerably as regards both their form and content. In particular, so far as the present petition is concerned, I am far from clear that it is, in substance, an application to the "supervisory jurisdiction of the Court of Session" if that jurisdiction be subjected to the full rigour of the analysis set out in West, cit. sup. With some hesitation, however, and in order, not least, to address the argument advanced on behalf of the reclaimer in this case, I shall from now on make that assumption.

[6] Turning, then, to the argument for the reclaimer, it is clear that the issues, as currently focused in the two new Declarators, do, at first sight, raise important questions as to the meaning and extent, in its application to Scotland, of section 21 of the Crown Proceedings Act 1947 which is in the following terms:

"(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that -

(a) where in any proceedings against the Crown any such relief is

sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land

or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown".

[7] It is convenient to deal first with what was essentially a "fall-back" proposition for the reclaimers, being the proposition embodied in the second new Declarator sought, viz. "that an order ordaining the Scottish Ministers to transfer the petitioner...under section 45(b) of the Court of Session Act 1988...may competently be made...". In that connection Rule of Court 58.3(1) provides, inter alia, that "an application to the supervisory jurisdiction of the court, including an application under section 45(b) of the Act of 1988 (specific performance of statutory duty) shall be made by petition for judicial review". However, as I interpret that Rule an application under section 45(b) of the 1988 Act only falls under it where the application otherwise satisfies the requirements for an application to the supervisory jurisdiction of the court. When, in 1983, a working party was set up by Lord President Emslie to report on a new court procedure for judicial review of administrative action, the remit included, as it happens, a reference to the predecessor section of section 48(b) of the 1988 Act. Doubtless, therefore, this is the explanation for finding a reference to section 45(b) in the Rule in question. Indeed, the working party proposed, in terms, that "This procedure [viz. for judicial review] may also be used by an applicant seeking an order for specific performance of any statutory duty..." and, in that respect, commented as follows:

"We had to use the permissive 'may' in relation to applications for an order for specific performance of a statutory duty because an Act of Sederunt cannot exclude the section 91 petition [now the section 48(b) petition] expressly provided by statute."

It follows from the above that, notwithstanding the provisions of Rule of Court 58.3(1), the reclaimers would, in my opinion, be entitled to succeed on this fall-back proposition even if they were to fail on their much broader proposition related to the supervisory jurisdiction of the court.

[8] The argument for the reclaimer under this head was that, by analogy with English law, the reference in section 21(1)(a) of the 1947 Act to "specific performance" could, and should, be read as confined to specific implement at common law, thereby excluding from the operation of the section any application under section 45(b) of the 1988 Act. Reference was made, on this point, to Clyde and Edwards on Judicial Review at para. 23.37. In my opinion, however, whatever might otherwise be its merits, this argument fails for the simple reason that the statutory duty which is here sought to be enforced is again the very general statutory duty to give effect to Convention rights contained in section 57(2) of the Scotland Act 1998 and/or section 6 of the Human Rights Act 1998. Neither, in my view, is in any way representative of the sort of precise statutory duty in respect of which application by "summary petition" is envisaged by section 45 of the 1988 Act. In this connection, I refer to what was said by Lord Dundas about its predecessor section (section 91 of the Court of Session Act 1868) in Carlton Hotel Co. v. Lord Advocate 1921 S.C. 237 at p. 246:

"This is a summary petition under section 91 of the Court of Session Act, 1868, for an order for specific performance of an alleged statutory duty. The remedy thus sought is peculiar and drastic. It has not, I believe, been frequently resorted to; I am aware of only one reported instance. Those who invoke this remedy must, I think, be careful to aver a clear statutory duty which those on whom its performance is incumbent have refused, or unduly delayed, to perform; and to state in precise terms the order which, by their prayer, is sought from the Court."

Later in his opinion, at p. 248, Lord Dundas went on to say that:

"Section 91 was, in my judgment, never intended to provide a medium for the expiscation of intricate and doubtful duties, but rather for the summary enforcement of clearly existing ones, the due performance of which is neglected."

When confronted with these dicta, counsel for the reclaimer submitted that the bringing of proceedings by way of judicial review under Rule of Court 58 somehow elided the sort of specification which would otherwise be required and that it was sufficient if the precise complaint were established in the course of the review proceedings. In my opinion, however, this argument is entirely unfounded. As was pointed out by the working party referred to above, Rules of Court cannot alter the substantive law and what was said by Lord Dundas about an application under section 91 of the 1868 Act is accordingly just as true of an application under section 45(b) of the 1988 Act, whether or not that application purports to be brought under Rule of Court 58.3.

[9] That leaves for consideration the much wider proposition contained in the first of the new Declarators sought, viz. "that an order ordaining the Scottish Ministers to transfer the petitioner...may competently be made in proceedings by way of application to the supervisory jurisdiction of the Court of Session...".

[10] As to that, there is no doubt that the 1947 Act was designed to make it easier to sue the Crown and, insofar as section 21 can be seen as derogating from that general purpose, it seems to me that in dubio it should be accorded a narrow, rather than an extended, meaning. This is particularly so bearing in mind that in Scotland, unlike England, it was apparently possible prior to the Act to obtain interdict against the Crown - Fraser: Constitutional Law (2nd edn.) at p. 165; BMA v. Greater Glasgow Health Board 1989 S.C. (H.L.) 65 per Lord Jauncey at p. 94; McDonald v. Secretary of State for Scotland 1994 S.C. 234 per the Lord Justice Clerk (Ross) at p. 238. However, I use the word "apparently" advisedly since, in the course of a careful address, junior counsel for the respondents pointed out that the two cases often cited in support of this proposition, viz. Russell v. Magistrates of Hamilton (1897) 25 R. 350 and Bell v. Secretary of State for Scotland 1933 S.L.T. 519, provide, on close examination, a somewhat shaky foundation. In Bell it seems that the Lord Ordinary granted interim interdict without the benefit of any contradictor and on the supposed authority of two English cases whereas, in Russell, it appears from Session Papers that no actual interdict was pronounced against the Crown as opposed to the Provost and Magistrates of Hamilton who were the principal respondents. Nonetheless, on this point the weight of authority is, I think, in favour of the reclaimer.

[11] It was against the foregoing background, therefore, that counsel for the reclaimer maintained that, for Scotland, the reference to "civil proceedings" in section 21 of the 1947 Act should be read as excluding applications to the supervisory jurisdiction of the court. The argument in support of that contention ranged widely, but I do not think that I do it any injustice by seeking to summarise it under two main heads.

[12] First, an argument was advanced under reference to section 44 of the 1947 Act which in general provides that civil proceedings against the Crown may be instituted in the Sheriff Court "in like manner as if the proceedings were against a subject". Formerly, of course, such proceedings could only be raised in the Court of Session and the point taken by counsel was that at common law that remained the position so far as applications to the supervisory jurisdiction of the court were concerned. It followed that the reference to "civil proceedings" in section 44 of necessity excluded applications to the supervisory jurisdiction and the submission was that references elsewhere in the Act, including section 21, should be similarly construed. Indeed, senior counsel for the reclaimer sought to take the argument even further by submitting that the purpose of section 21 was to harmonise the position anent interdict and specific performance as between the Court of Session and what he claimed would have been the position in the sheriff court at common law if the common law had permitted proceedings against the Crown to be raised in the sheriff court in the first instance. Not only that, but it was also submitted that section 44 was in some way, for Scotland, the counterpart of section 15 in its application to England. While I have done my best to summarise senior counsel's embellishment of this particular argument, I have to confess that I am not convinced that I fully understand it even if I were to accept - which I do not - that the 1947 Act was designed to have some overall cohesive effect. For the rest, if there is a point to be made here, it is a point which pre-supposes that, for Scotland, Parliament intended to exclude from "civil proceedings" all and any civil proceedings in respect of which at common law the Court of Session had exclusive jurisdiction. Actions of reduction would, I think, also fall under that head. In my opinion, however, it is most unlikely that Parliament had any such intention. In any event, I regard the true purpose of section 44 as being, quite simply, to equate the position of the Crown with that of the subject where, after the Act, proceedings were raised in the sheriff court - subject, that is, to the proviso at the end of the section anent the remitting of proceedings, when appropriate, to the Court of Session. If I am right about that, then the fact that applications to the supervisory jurisdiction have to be raised in the Court of Session is nothing to the point since that is as true of proceedings against the subject as it is of proceedings against the Crown.

[13] The second main head of argument was based entirely on analogy with what was said to be the effect of section 21 in England. This was referred to from time to time during the course of the debate as the "read across" approach to section 21.

[14] Lest it be thought that I have overlooked the submissions, I note, for the record, that this particular line of argument was heavily embellished by references to the "rule of law" and the supposed requirement to read the 1947 Act as if it was "speaking" in light of the "new constitutional settlement" embodied in the Scotland Act and Human Rights Act referred to above. Article 13 of the European Convention on Human Rights, albeit not as such incorporated as a Convention right, was also referred to for its persuasive force in the context of the need for effectual remedies in general and, in particular, against the Crown.

[15] Speaking for myself, I did not find any of these embellishments to be of much assistance and, indeed, I have to say that at times the extensive references made to them seemed to me, if anything, to obfuscate the true thrust of the argument.

[16] So far as recourse to the "rule of law" is concerned, my own view is that only one of the numerous cases cited in that connection was of immediate significance, viz. M v. Home Office [1994] 1 AC 377. At p.395 Lord Templeman said this:

"My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend, Lord Woolf, and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt."

I am prepared to take from these and other like dicta pronounced by their Lordships in the case of "M" that it may be thought desirable that a minister should in certain circumstances be subject to coercive orders pronounced by the court. However, these dicta were pronounced in a case where a distinction appears to have been drawn between the Crown and ministers directly representing the Crown (for instance in the exercise of the prerogative), on the one hand, and, on the other hand, ministers acting in their so-called "official capacity" - which is a distinction not made in the law of Scotland; McDonald v. Secretary of State for Scotland, cit. sup. In any event, except in so far as in a doubtful case it may reflect on the intention of Parliament, I am not sure that recourse to the rule of law can assist in what in the end is an exercise in statutory construction. Much of the reclaimer's argument seemed to me to overlook that essential point. For instance, we were referred to Conway v. Rimmer [1968] AC 910 at p.938 where Lord Reid, after acknowledging that there were many chapters of the law where for historical and other reasons it was quite proper that the law of Scotland should be different from that of England, went on to say:

"But here we are dealing purely with public policy - with the proper relation between the powers of the executive and the powers of the courts - and I can see no rational justification for the law on this matter being different in the two countries."

If that dictum is read out of context, then it may appear to have some relevance to the present case. The fact is, however, that it was pronounced in a case which was concerned solely with the common law of Crown privilege in relation to the production of documents, being a context far removed from a construction of section 21 of the Crown Proceedings Act 1947. In short, it seems to me that the rule of law can mean many things in many different contexts. In Reg. v. Home Secretary, ex parte Pierson [1998] AC 539 it was referred to by Lord Steyn, at p. 591, as covering the "fundamental principle" that a sentence of imprisonment, duly passed, should not be retrospectively increased. This, in turn assisted in the interpretation of section 35(2) of the Criminal Justice Act 1991. In the present case, however, it serves absolutely no purpose to assert that the "rule of law" requires coercive orders to be granted against the Crown unless there can be shown a sound means of construing the Statute to that end.

[17] As for the supposed effect of the "new constitutional settlement", leaving aside section 3 of the Human Rights Act 1998 (which is not here in point), I am far from satisfied that it is permissible to interpret legislation in the light of later legislation which does not repeal or modify the earlier legislation. The only authority cited for this proposition was a passage in the speech of Lord Steyn in McCartan Turkington Breen v. Times Newspapers Ltd [2001] 2 AC 277 at p.296. In the passage in question Lord Steyn refers with approval to a statement by Sir Rupert Cross in his work on Statutory Interpretation that an Act of Parliament "has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force." Lord Steyn's own gloss on that passage is that it is "generally permissible and indeed necessary to take into account the place of the statutory provisions in controversy in the broad context of the basic principles of the legal system as it has evolved" which, in the case in point, was the "law of freedom of expression as it exists today". In the result, their Lordships decided that a press conference qualified as a "public meeting" within the meaning of the Law of Libel Amendment Act 1888. In my view, however, it is a very different - and much more extravagant - proposition to suggest that the Scotland Act 1998 and the Human Rights Act 1998 should - quite apart from section 3 - have some general effect on the interpretation of prior legislation.

[18] As regards the reference to Article 13 and the desirability of effectual remedies, it seemed to me that counsel for the reclaimer were inclined to overlook the availability of the prison complaints system and the value of a final declaratory order, as to both of which matters I respectfully adopt all that is said by Lord Hardie. Even supposing, however, that the lack of coercive remedies does lead to a degree of ineffectiveness, it has to be recognised that, even on the reclaimer's approach, Parliament saw fit to legislate to that effect in the context of other civil proceedings such as those based in contract and tort or delict.

[19] This brings me at long last to a consideration of what I conceive to be the reclaimer's only real argument under this head, namely the proposition, as advanced by junior counsel for the reclaimer, that when it came to interpreting section 21 of the 1947 Act one should "in essence" read in, for Scotland, an exclusion from "civil proceedings" analogous to the express exclusion, for England, of "proceedings on the Crown side of the King's Bench Division;" (see section 38(1) of the Act). The exclusion which it was suggested should be "read in" was, of course, an exclusion of "applications to the supervisory jurisdiction of the Court of Session".

[20] When the reclaimer's argument is thus exposed it immediately raises in my mind three essential questions:

(1) What, in England, as at 1947 was understood to be the practical effect of excluding from the ambit of "civil proceedings" "proceedings on the Crown side of the King's Bench Division"? The importance of looking at the position as at 1947 is, perhaps, obvious but, since senior counsel for the reclaimer submitted otherwise, I refer, in passing, to Craies on Statute Law, 9th Ed. at p. 126 and Bennion on Statutory Interpretation, 3rd Ed. at p. 532.

(2) Is there any recognisable department of the law of Scotland which

could have been thought to equate with "proceedings on the Crown side of the King's Bench Division" and, if excluded from the expression "civil proceedings", would have achieved the same practical effect? In particular, would the exclusion of "applications to the supervisory jurisdiction of the Court of Session" have achieved that effect?

(3) Assuming an affirmative answer to question 2, can it in any event be said that there is a sufficient reason to read in the exclusion for Scotland by implication?

In connection with Question 3 I have to record that, once again at a late stage in the proceedings, Mr. O'Neil, Q.C., for the reclaimer, sought to depart from his junior's presentation and demurred to the use of the phrase, "read in...by implication". Mr. O'Neil suggested that, instead, the reference to "proceedings on the Crown side of the King's Bench Division" should be directly interpreted for Scotland as meaning "applications to the supervisory jurisdiction of the Court of Session". However, with all respect to senior counsel, I am afraid that I again have some difficulty in understanding that submission. The fault may, of course, be mine but, as I see it, the plain fact is that there is no express reference in section 21, or anywhere else in the 1947 Act, to the "supervisory jurisdiction of the Court of Session" and it is trite law that the court cannot re-write the words of an Act of Parliament. If, therefore, there is any argument for the reclaimer, it seems to me that it can only be along the lines advanced by junior counsel and on the basis of some form of implication.

[21] As to question (1) it is, of course, very difficult for a Scots lawyer to express any useful, let alone authoritative, view, particularly bearing in mind that the exclusion from "civil proceedings" of "proceedings on the Crown side of the King's Bench Division" does not stand alone but has to be read along with the further definition of "civil proceedings" for England contained in section 23(2) of the 1947 Act. However, assisted by counsel's researches it is, I think, possible to venture at least two propositions. First, proceedings on the Crown side of the King's Bench Division would have included, but probably were not coextensive with, the three prerogative writs of certiori, prohibition and mandamus. Second, such proceedings did not include injunctions, the decision of the House of Lords in M v Home Office, cit. sup., being the first occasion on which it was decided at the highest level that injunctions could be pronounced against ministers of the Crown acting in their official capacity. In saying that, I recognise that that proposition had earlier been upheld by Hodgson J. in Reg. v. Home Department ex parte Herbage [1987] Q.B. 872, and I further recognise that the jurisdiction to grant this sort of injunction in England only arose following the passing of section 31 of the Supreme Court Act, 1981. In the result, and after reading what is said by Lord Woolf in M v. Home Office at pps. 415-417, it seems to me that as at 1947, because of the exclusion of "proceedings on the Crown side of the King's Bench Division", the understanding would have been that in England proceedings could have been brought against a minister of the Crown acting in his official capacity for an order of mandamus. It is possible that the other prerogative orders would likewise have been available, but one remedy which could not have been obtained was the remedy of injunction of which the Scottish equivalent is, of course, interdict.

[22] Turning to question (2), I have little hesitation in concluding that neither as at 1947 nor at the present time could there have been found or can there be found any separately identifiable department of Scots law which was or is capable of equating, even approximately, to "proceedings on the Crown side of the King's Bench Division", let alone a department of the law which, when excluded from "civil proceedings", would have produced, or would produce, for Scotland, a practical result the same as that achieved by the Act for England. In this connection, I can do no better than respectfully adopt what is said by the authors of "Administrative Law" in the Stair Memorial Encyclopaedia at para. 4:

"The supervisory jurisdiction of the Court of Session over inferior courts, tribunals and administrative bodies may be compared with the role of the former Court of Queen's Bench in England (now the High Court) in ensuring that inferior judicial and administrative bodies exercise their powers in accordance with the law. But whereas the English court fulfilled that role by means of the prerogative writs, three of which (certiori, mandamus and prohibition) later became prerogative orders, the supervisory jurisdiction of the Court of Session was exercised by means of the same general remedies (notably reduction, declarator and interdict) as were used in all branches of the civil law. Thus, whereas in English law the three prerogative orders enabled the court to exercise an integrated supervisory jurisdiction in the public law field, in Scotland it has not been possible by reference to judicial remedies alone to identify a distinct branch of judicial practice; nor has the law in Scotland been dominated, as has often been the case in England, by the restraints of a remedy-based system."

There then follows a quotation from West v. The Secretary of State for Scotland, cit. sup., to the effect that the competency of an application to the supervisory jurisdiction "does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review...".

[23] In the result, it seems to me quite impossible to identify the "analogous exclusion" for Scotland which junior counsel for the reclaimer invited us to read into the 1947 Act. Indeed, senior counsel, when pressed on this matter, accepted that no "exact fit" could be found. According to him that did not matter. It was sufficient that the "same mischief" should be struck at. When further pressed for some authority to support these propositions he referred to Bennion on Statutory Interpretation, 3rd Ed. at p. 248 and to the well-known dictum of Lord Macnaghten in Commissioner of Income Tax v. Pemsel [1891] AC 531 at p. 539. When, however, it was pointed out to counsel that these authorities were concerned with principles of construction whereby in certain circumstances the law of Scotland should be deemed to be the same as, and not just similar to, the law of England, counsel's position seemed to be that that was unimportant. In my opinion, however, that is of the greatest importance and I have yet to see any authority which supports the proposition - fundamental to the reclaimer's argument - that by way of analogy one can read into an Act of Parliament a provision for Scotland only loosely equivalent to some express provision for England.

[24] In the circumstances it is really unnecessary to address the third question posed above - as to which, somewhat remarkably perhaps, we were not favoured with any detailed submissions. At the very least, it might, I think, have been appropriate to refer to Bennion on Statutory Interpretation (3rd edn.) at pps. 390-392. For what it is worth, I would, I think, have had the greatest difficulty in seeing why the exclusion for Scotland should be read in by implication when, on the reclaimer's hypothesis, it could just as well have been made express, as it was for England. As it happens I am, myself, by no means clear as to how such an express exclusion for Scotland could even now be framed but, if it is thought desirable that the law of Scotland should in this respect be brought closer to that of England, then, as it seems to me, that can only be done by legislation.

[25] I have so far said little of the Lord Ordinary's opinion. My understanding is that he was addressed on the matter of competency for, at most, a matter of hours whereas we have been addressed on that subject for no less than seven days. It is, I think, fair to say that in general the Lord Ordinary's position was that he was bound by the decision of the Second Division in the case of McDonald v. Secretary of State for Scotland, cit. sup. This court is, of course, also bound by that decision but I acknowledge that, however hesitantly, their Lordships in the Second Division did leave open the possibility, as raised by the amicus curiae, that proceedings by way of application to the supervisory jurisdiction of the court might fall outwith the ambit of section 21 of the 1947 Act. In my view, therefore, the petitioner and reclaimer was entitled to advance the arguments which he has advanced before this court but, having heard these arguments, I am satisfied that they should be rejected.

[26] In the result, I move your Lordships to repel the first and second pleas-in-law as now tabled by the petitioner and to adhere to the interlocutor of the Lord Ordinary dated 26 October 2001, including that part of it which refused the petitioner's motion for an interim order against the Scottish Ministers.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Hardie

Lord Weir

 

 

 

 

 

 

 

 

 

P1199/01

OPINION OF LORD HARDIE

in

RECLAIMING MOTION

in

PETITION

of

SCOTT DAVIDSON

Petitioner;

for

Judicial Review of a decision to continue to detain the petitioner in inhuman and degrading prison conditions, contrary to Article 3 of the European Convention on Human Rights

 

______

 

 

Act: O'Neill, Q.C., Collins; Drummond Miller

Alt: Brailsford, Q.C., Mure; Solicitor to the Scottish Executive

18 December 2001

[1] I have had the advantage of reading in draft the Opinions of your Lordships. The procedural history of this case is set out in the opinion of your Lordship in the chair and I need not rehearse it. I would only add that on the fourth day of his submissions, junior counsel for the reclaimer advised the court that there was a printing error in the reclaiming print and he tendered a corrected version. On closer scrutiny it was clear that the statement made by junior counsel was inaccurate in the sense that the error to which he alluded was an error which appeared in the original petition. In these circumstances leave to amend the petition was sought and granted. The amendment involved substituting a new Statement 2 relating to the petitioner. The original statement alleged that the petitioner had been detained within H.M. Prison Barlinnie, Glasgow since 29 June 2001 whereas the true position, as reflected in the amended statement, is that he had been detained in that prison since 2 April 2001. The dates of his detention in different Halls within said prison and the date on which his solicitors wrote to the Governor of the prison were also incorrect in the petition as lodged. The original Statement 2 related to a different prisoner for whom the same solicitors acted and on whose behalf a similar petition had been drafted. We were also advised that a number of similar cases were either before the court or in preparation. This error, coupled with the failure of the reclaimer to pursue the remedies available to him in terms of the Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (as amended) (hereinafter referred to as "the Prison Rules"), suggested to me that the complainer and his legal advisers were seeking, as part of a campaign involving other prisoners, to obtain what was, in effect, an advisory Opinion of the Court. Had the reclaimer pursued his remedies under the Prison Rules, the present application might have proved quite unnecessary. He could, of course, have raised an action of damages, if so advised, in respect of the period during which he alleged that he was detained in conditions which contravened his rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"). Alternatively, if his resort to the internal remedies had been unsuccessful, I agree with your Lordship in the chair that he could have sought judicial review of the Governor's decision. As it was, junior counsel for the reclaimer acknowledged that the reclaiming motion was intended to deal with "abstract questions of principle". I strongly disapprove of the procedure adopted by the reclaimer and his legal advisers in this case. It is a matter for future consideration whether the court should dismiss at the earliest opportunity any similar such petitions unless the petitioner has had recourse to and exhausted his remedies under the Prison Rules. If the court does not adopt such a stance there is a real risk that, by reason of the priority given to petitions for judicial review, judicial time and public funds will be utilised unfairly at the expense of other litigants.

[2] Before leaving the various procedural matters in this case I wish to comment on the position adopted by the Advocate General for Scotland. The Advocate General lodged a minute in process intimating to the court that she intended to be represented. When the case called there was no appearance on behalf of the Advocate General and, at the request of the court, counsel instructed by the Advocate General appeared to explain her position. We were advised that although the Advocate General recognised that this case was "a major constitutional case" she did not wish to appear or make representations to the court "at this stage in the proceedings". However, on behalf of the Advocate General it was stated that she wished to reserve her position as to whether she would appear at a later stage in the event of there being an appeal to the House of Lords. Counsel was unable to explain the change of heart on the part of the Advocate General because he was advised that officials had not been told by the Advocate General of the reasons for that change.

[3] For my part I considered that the position of the Advocate General was unsatisfactory. While it is, of course, a matter for the Advocate General to determine in which cases she wishes to be represented, I venture to suggest that it is particularly unfortunate that the Advocate General should not appear in cases which she considers to be of major constitutional significance. It might have been helpful for the court to have the benefit of her submissions as it is clear that a decision in this case could have implications not only for the Secretary of State for Scotland but also for other United Kingdom Ministers exercising a jurisdiction in Scotland. I also wish to record my disapproval of any practice whereby the Advocate General elects not to appear before this court, but chooses thereafter to intervene in proceedings before the House of Lords or the Privy Council, as the case may be, if the decision of this court does not meet with her approval. Such a practice has numerous disadvantages including the risk that the position of the United Kingdom Government is never judicially considered in the event of neither party proceeding with an appeal to the House of Lords or the Privy Council as the case may be. There is the further consequence that this court, in reaching its decision, does not have the benefit of arguments on behalf of the United Kingdom Government, whereas the decision might subsequently be criticised by the Advocate General on grounds which she did not have the courtesy to advance before this court.

[4] For the rest, I share the concerns of your Lordship in the chair about the general competency of the present proceedings but agree with your Lordship, albeit with considerable reluctance, that the court should not ex proprio motu require the competency to be fully argued and the case decided on that basis. Accordingly I shall also reserve my opinion about the competency of this petition.

[5] Turning to the substantive arguments, I agree with your Lordships that an order under section 45(b) of the Court of Session Act 1988 could not be pronounced in this case for the reasons given by your Lordship in the chair.

[6] Junior counsel for the reclaimer, under reference to the authorities of MacGregor v. Lord Advocate 1921 S.C. 847, Adams v. Naylor 1946 A.C. 543 and British Medical Association v. Greater Glasgow Health Board 1989 (H.L.) S.C. 65, submitted that the principal intention of the Crown Proceedings Act 1947 (hereinafter referred to as "the 1947 Act") was to remove the impediments to actions against the Crown based upon contract and delict. In this sense it was a liberalising statute and should not be construed as restricting or otherwise interfering with the power of the Court of Session to grant interdict or specific performance at common law. He did, however, concede that he could not submit that the 1947 Act only related to actions based upon contract and delict. While senior counsel adopted all of the submissions of his junior, he did not develop this as a separate submission or withdraw the concession. In contrast, he referred to British Medical Association v. Greater Glasgow Health Board cit. sup. in the context of his section 44 and, what I shall call, his section 38(2) submissions and made no reference to the other two authorities. Whatever the status of this submission by junior counsel in the overall argument on behalf of the reclaimer, it appears to me that the issue for the court is the proper construction of section 21 of the 1947 Act. For the reasons given by Lord Weir for rejecting this submission and for the reasons given by your Lordship in the chair and myself for rejecting the subsequent submission that section 38(2) should be interpreted as excluding from section 21 applications to the supervisory jurisdiction, I would also reject this submission.

[7] In relation to the argument advanced under reference to section 44 of the 1947 Act I respectfully agree with your Lordship in the chair concerning the meaning of the phrase "in like manner as if the proceedings were against a subject". However, I consider that there is an additional reason for rejecting this submission on behalf of the reclaimer. The substantive provision in section 44 is in the following terms:

"Subject to the provisions of this Act and to any enactment limiting the jurisdiction of the Sheriff Court (whether by reference to the subject-matter of the proceedings or otherwise) civil proceedings against the Crown may be instituted in the Sheriff Court in like manner as if the proceedings were against the subject."

There then follows a proviso relating to the transfer of cases from the Sheriff Court to the Court of Session at the instigation of the appropriate law officer, which has no application in the present case. It appears to me that the substantive provision restricts the ability of a litigant to raise civil proceedings against the Crown in the Sheriff Court to the extent that there exists any enactment limiting the jurisdiction of the Sheriff Court. The Sheriff Courts (Scotland) Act 1907, as amended, regulates the jurisdiction of the Sheriff Court. Section 5 of that Act provides as follows:

"Nothing herein contained shall derogate from any jurisdiction, powers, or authority presently possessed or in use to be exercised by the sheriffs of Scotland and such jurisdiction shall extend to and include -".

There then follows a list of court actions and other proceedings, many of which have been added by subsequent legislation. I consider that the effect of section 5 is to confer upon the sheriffs of Scotland the jurisdiction which they had as at 1907 and to extend it by including jurisdiction in certain specified actions and other proceedings listed in that section. Accordingly, section 5 appears to me to be a provision limiting the jurisdiction of the Sheriff Court. In order to determine the extent of that jurisdiction it is necessary to consider what jurisdiction could be exercised by the sheriffs of Scotland in 1907. Whatever the extent of their jurisdiction in 1907, it did not extend to the supervisory jurisdiction which was exclusive to the Court of Session:- Forbes v. Underwood (1886) 13 R. 465; West v. Secretary of State for Scotland 1992 SC 385 at pages 393 to 403. Thus "civil proceedings" in section 44 should be construed as being restricted to such proceedings as may competently be raised in the Sheriff Court. If this construction is correct, it does not assist the reclaimer when one comes to consider the meaning of the term "civil proceedings" in section 21. Indeed, if section 44 is of any assistance in the construction of section 21 it might favour the respondent's submission that the phrase should be construed in its widest sense when it appears in section 21, as no limitation appears in that section.

[8] For the reasons given by your Lordship in the chair I also agree that there is no merit in the submission on behalf of the reclaimer that a reference in the definition of "civil proceedings" in section 38(2) of the 1947 Act to the exclusion of proceedings on the Crown side of the King's Bench Division should be interpreted as including "applications to the supervisory jurisdiction of the Court of Session". Accordingly I would reject this submission. I would also observe that the definition of "civil proceedings" in section 38(2) is not an exhaustive definition. It simply includes proceedings in the High Court or the County Court for the recovery of fines or penalties and excludes proceedings on the Crown side of the King's Bench Division. In so far as this definition can be translated into Scottish terms, section 43(a) provides that the references to the High Court and the County Court should be replaced by references to the Court of Session and the Sheriff Court respectively. It is noteworthy that there is no equivalent translation of "proceedings on the Crown side of the King's Bench Division". In view of the existence of the supervisory jurisdiction of the Court of Session for almost 200 years prior to the enactment of the 1947 Act, Parliament must have been aware of that jurisdiction and could have excluded it from the operation of section 21 if Parliament had wished to do so. In addition to section 38(2) of the Act, sections 23(1) and 23(2) respectively define civil proceedings by the Crown and civil proceedings against the Crown for the purposes of Part II of the Act. Section 21 is in Part II of the Act, but section 23 is not extended to Scotland - see section 42. Thus, as far as England is concerned, the phrase "civil proceedings by or against the Crown" in section 21 must be construed by reference to section 23 and section 38(2). By contrast in its application to Scotland, the phrase is unrestricted in its meaning but in terms of section 38(2), as applied to Scotland by section 43, it includes proceedings in the Court of Session or the Sheriff Court for the recovery of fines or penalties. I would respectfully agree with the obiter dictum of Lord Sutherland in Macdonald v. Secretary of State for Scotland 1994 S.C. 234 at 248 to the effect that it is very difficult to see how an application to the supervisory jurisdiction of the Court of Session should not be regarded as being civil proceedings within the meaning of the Act. For the reasons given by your Lordships and the additional reasons stated above I would also reject the attempts made to distinguish the case of Macdonald v. Secretary of State for Scotland and the submission that proceedings by way of application to the supervisory jurisdiction of the court fall outwith the ambit of the 1947 Act.

[9] It was also submitted on behalf of the reclaimer that if section 21 of the 1947 Act were interpreted so as to exclude the remedy of interdict and specific performance in proceedings against the Crown, including applications to the supervisory jurisdiction of the Court of Session, one effect would be to deprive litigants of an effective remedy. In these circumstances counsel submitted that section 21 should be interpreted in a manner which was consistent with Article 13 of the Convention, even although that Article had not been incorporated into domestic law by the Human Rights Act 1998. Section 3(1) of the Human Rights Act 1998 provides that primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights, so far as it is possible to do so. Convention rights are defined in section 1 of that Act as meaning inter alia Articles 2 to 12 and 14 of the Convention. Thus there is no obligation in terms of the 1998 Act to construe legislation so as to give effect to it in a way which is compatible with Article 13. In this connection I would adopt the statement in the speech of Lord Hope of Craighead in Montgomery v. H.M. Advocate 2001 SC (PC) 1 at page 16 to the following effect:

"The reason which was given for that omission in Parliament was that there was no need to give effect to Article 13 through national legislation, as sections 7 to 9 of the Human Rights Act were intended to provide the remedial structure for the giving of effect to the Convention rights in our domestic law."

This was a passage relied upon by counsel for the reclaimer but it is important to recognise, as Lord Hope did later in his speech under reference to Vilvarajah v. United Kingdom (1991) 14 EHRR 248, that Article 13 does not go so far as to require any particular form of remedy, there being a margin of discretion afforded to contracting of States in conforming to their obligations under Article 13. The scope of the obligation varies depending on the nature of the applicant's complaint under the Convention:- Aksoy v. Turkey 1996 23 E.H.R.R. 553 at 593. That case may incidentally provide an answer to the hypothetical question posed by the reclaimer relating to the supposed need for interim remedies in cases where torture is alleged. As was observed in Aksoy at 593:

"Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture."

In any case involving allegations of torture, I venture to suggest that the court would expect to be advised of the procedures in place for investigating such complaints as well as the remedies available to the complainer. In the present case, however, such emotive references to hypothetical situations were of no assistance to me in construing section 21 of the Act.

[10] I agree with the submission made by counsel for the respondents to the effect that Scottish Ministers are in any event entitled to rely upon the aggregate of remedies available to persons such as the reclaimer in order to satisfy the court that an effective remedy is available. Applying that test to any prisoner it is clear that there are a variety of remedies available to him. In the first place a prisoner who desires to make a complaint concerning any matter may do so by invoking internal grievance procedures specified in Rules 103 to 113 inclusive of the Prison Rules. Rule 103 relates to the prisoner's entitlement to write a letter of complaint to the visiting Committee. Rules 108 and 108(a) relate, respectively, to complaints in relation to confidential matters and complaints concerning medical treatment. Rule 110 relates to requests, complaints and representations to the Scottish Ministers. Rule 113 relates to the form and manner in which complaints may be made. Rules 111, 112 and 112(a) have no application for present purposes. Rule 104 authorises a prisoner to make a complaint concerning any matter, other than a matter to which Rules 102, 103, 108, 108(a), 110, 111 and 112 apply, and would include, in my opinion, the conditions in which he is detained. The complaint should be made in the first instance to the Residential Officer. If the prisoner is dissatisfied with the response from that officer, he may refer the complaint to the Residential Unit Manager in terms of Rule 105. If he is dissatisfied with the response of the Residential Unit Manager, the prisoner may refer his complaint to the Internal Complaints Committee in terms of Rule 106 and if he is dissatisfied with the decision of that Committee he may refer his complaint to the Governor in terms of Rule 107. As has already been observed, the reclaimer did not avail himself of the internal complaints procedure to which I have referred. Moreover, he could have sought judicial review of the ultimate decision of the Governor if he were aggrieved by that decision.

[11] Apart from the remedies associated with the internal complaints procedure and judicial review of any decision of the Governor, the reclaimer has available to him the remedies of a declarator that the conditions in which he was detained contravened Article 3 of the Convention and a claim for damages. If he were successful in obtaining a declarator, it has long been the practice of the Crown in Scotland to give effect to any declarator pronounced by the court. To that end the Crown invariably gives an undertaking that it will give effect to such a declarator. This is commonly the case in immigration cases where the Crown gives an undertaking not to remove the petitioner from the jurisdiction pending the final determination of the court and in the present case we were advised that the Crown had given a written undertaking that it would comply with any declarator which was finally pronounced subject, of course, to any rights of appeal on the part of the Crown. Counsel for the reclaimer sought to suggest that a declarator, coupled with an undertaking, is not an effective remedy because it is not a coercive order. That submission is plainly wrong and contrary to the authority of Graham v. Robert Younger Limited 1955 J.C. 28. In that case it was argued that a breach of an undertaking did not amount to contempt of court. In dealing with that matter at page 32 Lord Justice Clerk Thomson stated:

"But the taking of such undertakings from parties, either personally or through their counsel, is a common and convenient step in our procedure and it would rob undertakings of any usefulness if there were no sanction and if the giver of an undertaking, the terms of which were clearly understood, could proceed immediately to ignore it. I am quite satisfied that in appropriate cases a court has jurisdiction to treat a breach of a solemnly given undertaking as contempt."

At page 33 Lord Birnam expressed a similar view when he said:

"But the power of the court is perfectly general in its scope and is not limited to any particular forms of contumacy. I should think it most unfortunate if a deliberate breach by a litigant of a clear undertaking or promise given by him to the sheriff substitute could be regarded otherwise than as a serious contempt of court and punishable as such."

Thus a declarator, coupled with an undertaking to give effect to the declarator, is as effective a remedy and as coercive as an order for specific performance because breach of the undertaking will enable the court to punish the offender in exactly the same manner as any failure to comply with an order for specific performance.

[12] Counsel for the reclaimer also relied upon the lack of an interim remedy. It was accepted on both sides of the bar that it was not competent for the court to pronounce an interim declarator. Reference was made to Provost, Magistrates and Councillors of the Royal Burgh of Ayr v. Secretary of State for Scotland 1965 S.C. 394. In that case Lord Fraser refused an interim declarator because such an order would be hypothetical and the 1947 Act did not, in his opinion, entitle him to make such a hypothetical declaratory order of the rights of the parties. I respectfully agree with Lord Fraser. An interim declarator in cases alleging breaches of Convention rights would have the effect of determining the issue between the parties, not only on the basis of accepting pro veritate the averments of a breach of those rights but also on an acceptance of legal principle in advance of full argument. In my opinion such an interim order could not competently be made. I consider that similar problems may well exist in regard to an interim order for specific performance in relation to alleged breaches of human rights where those breaches are not accepted by the other party. I am of the opinion that, where there is a fundamental dispute as to whether there has been a breach of human rights, the court would find it very difficult to act by way of interim order until such time as that dispute has been resolved. Although an interim order in such circumstances has the same shortcomings as an interim declarator, I reserve my opinion concerning the competence of such an order as that question was not the subject of detailed submissions with a full citation of authority. Even if I am wrong about interim orders for specific performance, I do not consider that the absence of a jurisdiction to grant interim orders detracts from the effectiveness of the available remedies.

[13] In all the circumstances I would concur with the motion made by your Lordship in the chair and refuse the reclaiming motion.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Hardie

Lord Weir

 

P1199/01

OPINION OF LORD WEIR

in

RECLAIMING MOTION

in

PETITION

of

SCOTT DAVIDSON

Petitioner;

for

Judicial Review of a decision to continue to detain the petitioner in inhumane and degrading prison conditions, contrary to Article 3 of the European Convention on Human Rights

 

______

 

 

Act: O'Neill, Q.C., Collins; Drummond Miller, W.S.

Alt: Brailsford, Q.C., Mure; R. Henderson Solicitor for Scottish Ministers

18 December 2001

[1] The proper construction of section 21 of the Crown Proceedings Act 1947, was only one of the issues considered by the Lord Ordinary when he refused to make the declaratory orders sought in this application. The Lord Ordinary was being asked to make an order ad interim in terms of sections 45(b) and 47(2) of the Court of Session Act 1988 and section 8(1) of the Human Rights Act 1998, requiring the respondents to "secure the transfer of the petitioner to conditions of detention compliant with Article 3 of the Convention." This was on any view a bold move, made as it was in advance of any answers having been lodged by the respondents. The Lord Ordinary held that, by reason of section 21 of the Act, it was not competent to make such orders, whether interim or final. He also came to the conclusion that on account of the factual dispute, a prima facie case had not been made out and refused to make the order sought or, indeed, an interim declaratory order to the same effect. In my opinion, it is highly questionable whether ,except in the most unusual circumstances, it can ever be appropriate to grant an interim order for specific performance where the effect would be to disturb the status quo. (Highland & Universal Properties Ltd v. Safeway Properties Ltd. 2000 S.C. 297). Furthermore, the propriety of making an interim declarator is equally doubtful (Ayr Town Council v. The Secretary of State for Scotland 1965 S.C. 394).

[2] Regrettably, none of these matters were argued before us. For reasons which remain unclear, at the By Order roll, a different division of the Inner House directed that this hearing was to be restricted to the question of whether in view of section 21 of the Act of 1947, the petitioner could competently obtain an order of specific performance or whether his remedy was restricted to an order declaratory of his rights. This Court has been compelled to consider this question in isolation and, despite some overlap of other issues, without regard to the circumstances of the case.

[3] A further unsatisfactory feature of the reclaiming motion should also be noted. What is sought by the petition is judicial review of "a decision" to continue the detention of the petitioner in inhumane and degrading conditions. The scanty and confused information placed before us gives rise to the question as to whether such a decision was ever formally made. Counsel for the respondents was not prepared to concede that a decision had been made, and if that is the case, the requirements for judicial review at the outset may have not been made out (West v. The Secretary of State for Scotland 1995 S.C. per Lord President Hope at pages 412-413). The matter goes further than this because, according to the respondents, a possible remedy for the petitioner's grievance can be found by the complaints procedure provided by the prison rules referred to by your Lordship in the chair, and a question may still arise as to whether the petitioner has exhausted his remedies before coming to raise these proceedings. In addition, a question arises as to whether judicial review procedure is the competent or appropriate form of redress for alleged violations of, or failures to secure Convention rights in terms of section 57(2) of the Scotland Act 1998 and section 7 of the Human Rights Act 1998. This may be an important question affecting our procedure, but it was not developed in argument to any extent and I reserve my opinion thereon.

[4] All the foregoing factors do not present a promising or desirable foundation for what has been described as a test case, the result of which will affect other similar cases which are awaiting a hearing and may have important implications in the field of administrative law. Nevertheless, albeit with some reluctance, I consider that it is possible to reach a determination on the issue of competency on the basis of the material before us, by assuming for the purpose of this reclaiming motion that judicial review is the appropriate means of ventilating the petitioner's grievance and that the respondents have made a decision on the manner of the petitioner's detention which is open to judicial review.

[5] Before the Act of 1947 came into force, the Crown enjoyed certain privileges in relation to proceedings between it and the subject. The original justification for such privileges was the need to preserve the dignity of the person of the Monarch. In course of time, the Officers of State or the Lord Advocate came to represent the Royal interest as defenders in proceedings against the State, and since the Crown Suits (Scotland) Act 1857, any action raised in Scotland by or against the Crown or against any public department, can be raised in the name of the Lord Advocate or directed against him. As far as the substantive law was concerned, the Crown enjoyed an important privilege inasmuch as it could not be sued in delict (MacGregor v. The Lord Advocate 1921 S.C 847). This immunity came to an end by virtue of section 2 of the Act. Moreover, the Crown could not be sued in the sheriff court (Somerville v. The Lord Advocate 1893 20R. 105), but this restriction was terminated by section 44 of the Act. It can be said therefore that the statute, by making it easier for the subject to sue the Crown, was liberal in intent and we were urged by counsel for the petitioner to bear this in mind in approaching the construction of section 21.

[6] It appears to have been the law before the passing of the Act that in Scotland, unlike in England, it was possible to obtain interdict, both interim and final, against the Crown (Russell v. Magistrates of Hamilton 1897 25R. 550; Bell v. Secretary of State for Scotland 1933 S.L.T. 579). A close analysis of these cases may suggest that this view was not based on a very solid foundation but this has been generally accepted to have been the position (British Medical Association v Greater Glasgow Health Board 1989 S.C.(HL) per Lord Jauncey of Tullichettle at page 94, McDonald v. Secretary of State for Scotland 1994 S.C. 234 per Lord Justice Clerk Ross at page 238). In Carlton (Edinburgh) Hotel Co Ltd v. The Lord Advocate 1921 S.C. 237. Lord Salvesen expressed the view that there was no reason why an order under section 91 of the Court of Session Act 1868 (the forerunner of section 45 of the Court of Session Act 1988) for specific performance of a statutory duty could not be brought against the Crown, although our attention was not drawn to any case in which an order had been pronounced in this way.

[7] Whatever the position may have been before 1947, section 21 of the Crown Proceedings Act made it clear that any rights to interdict or specific performance which may have existed before 1947 were to be curtailed. In my view, the section says so in terms which are in no way ambiguous and in McDonald v The Secretary of State for Scotland supra, the Court had no difficulty in holding that subjects had no right to obtain interdict or interim interdict against the Crown at least in relation to actions of delict. The section gives the Court power to make all such orders as it has power to make in proceedings between subjects and this is applied to "any civil proceedings" by or against the Crown. This power is subject to the proviso that in the case of any remedy which might be granted by way of interdict or specific performance, the Court is prohibited from granting either of these remedies but instead can make an order declaratory of the rights of the parties. We were invited to explore by reference to Hansard the reasons why Parliament chose to make these statutory provisions, but while the passages in question make interesting reading, they do not add to or abstract from what is, in my view, the plain meaning of the section.

[8] This is the first occasion since McDonald v The Secretary of State supra that the scope of section 21 has been challenged and, as we were informed, the first time since the passing of the Act of 1947 that it has been asserted that proceedings involving the supervisory jurisdiction of the Court of Session are unaffected by the proviso to section 21(1).

[9] As I have already mentioned counsel for the petitioner submitted that it had always to be kept in mind that while on one view the Act was a "liberalising" measure, it nevertheless diminished the pre-existing rights relating to interdict or orders for specific performance on the part of the Crown. This suggested that in examining the provisions of section 21, a "narrow" view should be taken of its construction. It was necessary to keep in view more recent developments of the law. The Court should have regard to Article 13 of the European Convention on Human Rights, whereby an effective remedy should be available for any violation of Convention rights. Modern concepts of interpreting statutes require the Court to examine and apply the statutory provisions in the world as it exists today and in light of the legal system as it has evolved (McCartan Turkington Breen v Times Newspapers Ltd 2001 2 A.C. 277 per Lord Steyn at page 295-296). In general terms the executive should be subject to the rule of law and the law is to be obeyed as a matter of necessity and not of grace (M v Home Office 1994 1 A.C. 377 per Lord Templeman at page 437). In particular, our attention was drawn to the situation in England where, as a consequence of the decision of the House of Lords in M v Home Office supra, section 21 no longer provided the Crown with immunity from interdict and if this Court was not to apply the reasoning of that case to Scotland, an anomaly would exist whereby the subject could obtain coercive remedies

against the Crown in England but not in Scotland.

[10] It is not clear to me how relevant some of the foregoing submissions are to the particular problem in this case. No one doubts the proposition that the Scottish Ministers are subject to the rule of law. The question is what in this case is the law. That, in my opinion, is purely a matter of construction of the relevant statutory provisions. I also accept that it is proper to examine closely the provisions of section 21 in so far as it has affected pre-existing rights. However, it is going too far to suggest that section 21 conferred an immunity on the Crown or that no effective remedy in terms of Article 13 of the Convention now exists. Section 21 provides that the Court may make an order declaratory of the petitioner's rights and the respondents have given an undertaking that they will obtemper any final declaration by the Court. It is relevant to note that breach of such an undertaking could be regarded as contempt of court. (Graham v. Robert Younger Ltd 1955 S.C. 38). Moreover, while I consider it desirable that the law as regards remedies against the Crown should be the same in both countries, if the proper construction of section 21 as applied to Scotland, inevitably leads to a different result, then that divergence is one which will have to be faced. But it would be entirely improper to do violence to the proper construction of the provision in order to achieve uniformity.

[11] Before considering the petitioner's submission on the construction of section 21, I should mention the additional submission to the effect that, if all else failed, the petitioner would be entitled to an order in terms of section 45(b) of the Court of Session Act 1988. For the reasons given by your Lordship in the chair, I agree that by reason of the wholly imprecise definition of the statutory duty which is sought to be enforced, this argument cannot succeed.

[12] Counsel for the petitioner advanced three submissions in support of the proposition that applications to the supervisory jurisdiction of the Court of Session were not covered by the provisions of section 21.

[13] The first submission was that restriction of the coercive remedies to declaratory orders applied only to "civil proceedings". The underlying object of the Act was to remove certain impediments to the bringing of such proceedings against the Crown, and this was achieved in particular by section 2. A right to sue the Crown in delict was created and it was only in relation to civil proceedings in this area of private law that the proviso to section 21 applied. Applications to the supervisory jurisdiction of the Court of Session were not civil proceedings.

[14] In considering this argument it is necessary to observe that there is no definition of "civil proceedings" in section 43, which is the interpretation section applicable to Scotland. However, I have no difficulty in reaching the conclusion that applications to the supervisory jurisdiction are such proceedings. In exercising the supervisory jurisdiction, the Court does so by granting a variety of remedies and to obtain such remedies, the litigant has to raise "proceedings". That they are "civil" is self-evident. The supervisory jurisdiction of this Court has been recognised for over 120 years (Forbes v Underwood 1886 13R. 465), and Parliament cannot have been unaware of the existence of this jurisdiction in 1947. So if Parliament had intended to exempt this form of proceeding in this jurisdiction from immunity against the Crown, it could readily have done so. It did not do so and, in my view, it is clear that applications such as the present petition are of the nature of civil proceedings. This argument was canvassed in McDonald v. The Secretary of State supra and in that connection, Lord Sutherland said at page 248:

"Finally I would note that counsel acting as amicus curiae raised the question as to whether, if an application was made for judicial review under Rule of Court 260B, it might be open to seek interim interdict on the view that an application to the supervisory jurisdiction of this Court did not constitute proceedings against the Crown within the meaning of section 21(1). Even prior to 1947, the supervisory jurisdiction of the Court of Session existed even though not in the present form of judicial review. In the definition section of the 1947 Act, Parliament made it clear that proceedings by way of prerogative writs did not fall within civil proceedings, but made no such provision in relation to the supervisory jurisdiction of the Court of Session. It would accordingly seem very difficult to see how judicial review should not be regarded as being civil proceedings within the meaning of the Act."

Although Lord Sutherland did not decide the issue or have the benefit of the fuller argument which we have heard, I consider that his views exactly express my own.

[15] The second submission advanced was to the same effect but on a different ground. Counsel referred us to section 44 of the Act, where it was provided that civil proceedings against the Crown could be instituted in the sheriff court in like manner as if the proceedings were against the subject. The same meaning, he said, should be given to civil proceedings in section 44 as in section 21. As the sheriff court did not and never did have a supervisory jurisdiction, this being exclusive to the Court of Session, it must be inferred that in section 21, Parliament could not have had in mind that civil proceedings in relation to proceedings in the Court of Session included applications to the supervisory jurisdiction. I have no difficulty in rejecting this submission. I do not consider that the purpose of section 44 was to do any more than confer a right which was previously denied to raise proceedings against the Crown in the Sheriff Court, rather than the Court of Session. The civil proceedings which can be instituted in the sheriff court are any of those which are within its competence, and it would not make any sense for the legislation to apply by implication, a restricted meaning to civil proceedings in section 21 as respects the Court of Session.

[16] The third submission was to the effect that the decision of M v The Home Office supra in which the House of Lords interpreted section 21 in a manner which, if applied in Scotland, would entitle litigants to both interdict and specific performance against the Crown, should be applied. Counsel for the petitioner observed correctly that the terms of the Act of 1947 were drafted as a statute primarily affecting the law of England, with some provisions adapted for the purposes of Scottish law. The submission was that it was possible to re-interpret section 21 by analogy, using the reasoning of M v. The Home Office in relation to English administrative law. In connection with the interpretation of a statute which contained the terminology covering both systems of law, we were referred to the case of Income Tax Commissioners v Pemsel 1891 A.C. 531 per Lord Macnaghten said at page 579:

"But in some cases certainly ... the statute proclaims its origin and speaks the language of the English lawyer, with some Scottish legal phrases thrown in rather casually. How are you to approach the construction of such statutes? We are not, I think, without a guide. It seems to me that there is much good sense in what Lord Hardwicke said in his well known letter to an eminent Scottish judge 'you must' he says 'as in other sciences reason by analogy' - that is, as I understand it, you must take the meaning of legal expressions from the law of the country to which they properly belong, and in any case arising in the sister country you must apply the statute in an analogous or corresponding sense so as to make the operation and effect of the statute the same in both countries. Thus you get what Lord Hardwicke calls 'consistent, sensible construction'".

[17] I have great difficulty in seeing how this exercise can be carried out here. Care must be taken in my view not to apply decisions relating to English law indiscriminately in Scotland. Without going into an analysis of these matters, three points stand out. One is that the origin and nature of the supervisory jurisdiction of the courts of the two countries is quite different. This is well and accurately summarised in the passages from the Stair Memorial Encyclopaedia which has been narrated in the opinion of your Lordship in the chair. The second point is that in section 23(2) and section 38 of the Act of 1947 there are provisions as to the meaning of "civil proceedings" which apply exclusively to England. The third point to be made is that the decision in M v The Home Office supra was based on section 31 of the Supreme Court Act 1981 which is a statute relating only to English procedure. In my opinion, therefore, it is not possible to carry out the kind of exercise envisaged by Lord Macnaghten in Income Tax Commissioners v Pemsel supra when interpreting section 21. The truth is that there is no true analogy to enable such reinterpretation to take place.

[18] I have reached the conclusion that since these proceedings are "civil proceedings" within the meaning of section 21, the proviso operates so as to deny the petitioner an order whether interim or final for specific performance. While I have arrived at this view without much difficulty, I do not reach it with any particular satisfaction. The activities of the Crown, whether through ministers or their servants, permeate so many corners of the lives of people, that it seems inequitable that in the case of a litigation, the executive should have a significant immunity from remedies which are otherwise available as between subjects. This injustice is compounded by the fact that the Crown in England no longer appears to have such an immunity. I would have been glad to have found a way to interpret section 21 in such a manner as to exclude judicial review from being regarded as civil proceedings but I could not do so without doing violence to the proper construction to be given to an unambiguous provision. It appears to me that the only cure for this state of affairs lies in the hands of Parliament.


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