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Davidson v. Scottish Ministers [2002] ScotCS 256 (11 September 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Kirkwood Lord Philip	P566/02 OPINION of THE LORD JUSTICE CLERK in PETITION to the nobile officium of the Court of Session of SCOTT DAVIDSON (Assisted Person) Petitioner; against THE SCOTTISH MINISTERS Respondents: _______

 

Act: O'Neill QC, Collins; Drummond Miller, WS

Alt: Brailsford QC, Mure; Richard Henderson, Solicitor to the Scottish Ministers

 

11 September 2002

Introduction

1. This is a petition to the nobile officium of the court. The petitioner craves the Court to set aside two decisions of an Extra Division on the ground that one of the judges of the Division ought not to have taken part in them or ought at least to have given the parties the opportunity to object to his doing so.

The history

2. The petitioner is a prisoner in H.M. Prison, Barlinnie. On 24 October 2001 he and another prisoner in Barlinnie lodged a petition for judicial review of an alleged decision by the Scottish Ministers to continue their detention in inhumane and degrading prison conditions, contrary to article 3 of the European Convention on Human Rights (the Convention). In that petition they sought (1) declarator that the conditions of their detention were incompatible with article 3; (2) an order ordaining the Scottish Ministers to secure their transfer to conditions that were compliant with article 3, and an interim order to that effect; and (3) damages.
3. On 26 October 2001, without answers having been lodged, the Lord Ordinary refused the petitioners' motions for interim orders for specific performance on the grounds of incompetency, lack of a prima facie case and balance of convenience.
4. The present petitioner reclaimed. By interlocutor dated 31 October 2001 an Extra Division appointed the case to the Summar Roll for a hearing on the question of competency.
5. The reclaiming motion was heard by an Extra Division consisting of Lord Marnoch, Lord Hardie and Lord Weir. During the course of the hearing, on the unopposed motion of the petitioner, the petition was amended by the addition of craves for declarators (a) that the order for specific performance sought against the Scottish Ministers could competently be made in an application to the supervisory jurisdiction under Rule of Court 58 and was not precluded by section 21 of the Crown Proceedings Act 1947 (the 1947 Act), and (b) that such an order under section 45(b) of the Court of Session Act 1988 (the 1988 Act) could competently be made and was not precluded by section 21 of the 1947 Act; and by the addition of two pleas-in-law supporting the new craves.
6. The Extra Division had doubts as to whether the petition constituted an application to the supervisory jurisdiction at all (cf. Lord Marnoch at para. [5]; Lord Hardie at para. [4]), but allowed the debate to proceed on the basis that it did. On 18 December 2001 the Extra Division repelled the petitioner's new pleas-in-law, refused the reclaiming motion and adhered to the interlocutor of the Lord Ordinary (cf. Davidson v Scottish Ministers, 2002 SLT 420).
7. On 20 December 2001 the same Division, Lord Weir dissenting, refused the petitioner leave to appeal to the House of Lords.

The present petition

8. The petitioner has now invoked the nobile officium on the following basis:

"That the petitioner is reasonably apprehensive that the Extra Division which pronounced the said interlocutors of 18th and 20th December 2001 was not apparently impartial as a result of the participation of Lord Hardie as hereinafter condescended upon. On the basis that a breach of the requirements for judicial impartiality may be purged in civil matters by an appeal to a higher court, the petitioner now applies to the nobile officium for the Extra Division's interlocutor of 20 December 2001 refusing the petitioner leave to appeal to the House of Lords to be set aside, and for leave now to be granted by this court to appeal against the interlocutor of 18th December 2001 to the House of Lords" (stat. VIII).

The petitioner alleges that the breach of apparent judicial impartiality occurred because Lord Hardie, when he was Lord Advocate, "was involved in significant and active promotion of the Scotland Bill" (stat. X); that "in the context of piloting and promoting the Scotland Bill through the House of Lords, [he] repeatedly advised the House as to the effect of section 21 of the Crown Proceedings Act 1947 as regards the remedies which might be available to the courts in Scotland against the Scottish Ministers" (stat. XI); and that subsequently he sat as a judge in the reclaiming motion in which "the correctness of his view as Lord Advocate as to the effect of the [1947 Act] was challenged" (stat. XIII). In the prayer of the petition, the petitioner craves the court, inter alia,

"to exercise the nobile officium of the Court of Session and hold that the interlocutor of the Extra Division of 18 December 2001 refusing the petitioner's reclaiming motion et separatim the interlocutor of the Extra Division of the 20th December 2001 refusing the petitioner leave to appeal to the House of Lords are each vitiated for apparent bias and want of objective impartiality on the part of the court by reason of the participation therein of Lord Hardie as condescended upon; to set aside the said interlocutor or interlocutors; to grant the petitioner leave to appeal to the House of Lords against the interlocutor of the Extra Division of 18 December 2001 ... or to do further or otherwise as to your Lordships shall seem proper."

9. This petition raises questions as to the principles of natural justice in the common law of Scotland and the right to a fair trial under article 6 of the Convention. It is agreed that if the petition is well founded, the court is entitled to exercise its nobile officium to set aside the interlocutors complained of (cf. Hoekstra v HM Adv (No 2), 2000 JC 391, Lord Justice General Rodger at paras. [13] - [14]).

The legislation

10. Section 44 of the Scotland Act 1998 provides inter alia as follows:

"44.-(1) There shall be a Scottish Executive, whose members shall be -

(a) the First Minister

(b) such Ministers as the First Minister may appoint under section 47, and

1. the Lord Advocate and the Solicitor General for Scotland.

(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers ... "

Section 21 of the Crown Proceedings Act 1947 provides inter alia as follows:

"21.-(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; ...

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."

In the construction of section 21 two definitions are important. Section 38(2) provides that

"Civil proceedings" includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King's Bench Division."

In its application to Scotland, the reference to the High Court is to be read as a reference to the Court of Session (s. 43(a)).

"Officer," in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provisions) includes a Minister of the Crown and a member of the Scottish Executive ... "

In this definition the words "and a member of the Scottish Executive" were added by the Scotland Act 1998 (s. 125(1); Sched. 8, para. 7(2)(c)).

The central question in the reclaiming motion

11. The central question in the reclaiming motion was whether, in view of section 21 of the Crown Proceedings Act 1947 (supra), a Scottish court could grant an order for specific performance, whether interim or final, against the Scottish Ministers or could merely grant an order declaratory of the parties' rights (ibid., Lord Marnoch at para. [6]; Lord Hardie at para. [6]; Lord Weir at para. [2]).
12. Counsel for the petitioner submitted that an application to the supervisory jurisdiction of this court did not constitute "civil proceedings" in section 21. If it did not, the Court was free to pronounce the order for specific performance that the petitioner was then seeking. That submission rested on an interpretation of the definition of "civil proceedings" in section 38(2) (supra); an attempted analogy with the effect of section 21 in England; and the drawing of inferences from the provisions of section 44 relating to proceedings in the sheriff court. There was also an excursus on human rights. I need not go into the details.
13. One of the difficulties in the way of that submission was the decision of the Second Division in McDonald v Secretary of State for Scotland (1994 SC 234). That was an action by a prisoner against the statutory predecessor of the Scottish Ministers for damages and interdict in respect of allegedly illegal personal searches. The Second Division held that the remedies of interdict and interim interdict were not available against the Secretary of State, at any rate in actions ex delicto. In that case Lord Justice Clerk Ross (ibid., at p. 243H-I) and Lord Sutherland (ibid., at p. 248F-G) remarked obiter on the apparent difficulty in any submission that an application to the supervisory jurisdiction did not constitute "civil proceedings" for the purposes of section 21 of the 1947 Act. Lord Sutherland observed:

"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."

Lord Hardie's involvement in the passage of the Scotland Bill

14. When the Scotland Bill was before Parliament, Lord Hardie held the office of Lord Advocate and had ministerial responsibilities for the passage of the Bill. Lord Hardie spoke from the Government benches in the House of Lords in the debate on the Second Reading of the Bill; on each of the ten days during which the Bill was debated at Committee Stage; on each of the four days on which it was debated at Report Stage; and on the debate at Third Reading when Commons amendments and reasons were considered.
15. At the Committee Stage Lord Hardie successfully proposed the amendment to section 38(2) of the 1947 Act (No. 292ZNA), which I have quoted, in order to include the Scottish Ministers within the class of officers of the Crown who, by reason of section 21 of the 1947 Act, were not subject to coercive orders of the courts.
16. On 8 October 1998, in proposing that amendment, he said of it inter alia:

" ... It also provides that a member of the Scottish executive is an officer in relation to the Crown for the purposes of the Act which puts him in the same position as a Minister of the Crown in the UK Government ... The Government consider it necessary that these amendments should be made on the face of the Bill rather than under clause 96 because they make clear the status which we intend the Scottish administration should have: a part of the Crown separate and distinct from the UK Government, in effect Her Majesty's Government in Scotland in relation to devolved matters ... " (8 October 1998, HL Deb Vol 593, col 650).

The amendment was enacted in paragraph 7(2)(c) of Schedule 8 to the Scotland Act 1998 (supra). On the face of it, it was a straightforward amendment that brought the Scottish Ministers within the protection of section 21 of the Crown Proceedings Act 1947, whatever that protection was; but there was a wider question in the background.

17. On 28 October 1998, at the Report Stage, in a debate on clause 54 of the Bill (power to prevent or require action), Lord Mackay of Drumadoon for the Opposition moved a series of amendments, one of which (No. 146E) sought to include a provision in the Bill itself that members of the Scottish executive would not be subject to orders for specific performance. In opposing those amendments, Lord Hardie said of amendment No. 146E:

"Amendment No. 146E seeks to protect members of the executive from being subject to orders for specific performance. I would remind your Lordships that Scottish ministers will be part of the Crown and will be protected by the provisions of the Crown Proceedings Act 1947, which at present ensures that the Crown cannot be subject to such orders. Instead, all that the courts can do is to issue a declarator. Therefore, in our view, the amendment is unnecessary" (ibid., col 2044).

The amendment was then withdrawn.

18. On 2 November 1998, the next day of the Report Stage, Lord Mackay of Drumadoon moved a further amendment (No. 192E) to provide that no court might pronounce any order requiring a member of the Scottish executive or a junior Scottish Minister to introduce a Bill to the Parliament or to make, confirm or approve any provision of subordinate legislation (HL Deb. Vol 594, col. 104). In answer to this amendment, Lord Hardie said:

"My Lords, the amendment is unnecessary. The answer to it is the Crown Proceedings Act 1947, which prevents the court from making an order for specific performance against the Crown. The Scottish executive will be part of the Crown. Accordingly, I invite the noble and learned Lord to withdraw his amendment" (ibid., col. 105).

 

Lord Hardie's participation in the decisions of the Extra Division

19. The petitioner avers (stat. XVIII) that his legal representatives were given no prior warning that Lord Hardie would be a member of the Extra Division that would hear the reclaiming motion. They learned of this only on the first morning of the hearing. Lord Hardie did not advise the petitioner's representatives of either the fact of or the extent of his involvement in the amendment to the 1947 Act, nor of the advice that he had given to the Westminster Parliament as a Minister of the United Kingdom Government as to the effect of those amendments, nor did he offer to recuse himself on the ground of apparent bias or the appearance of structural partiality. These last two averments are admitted by the respondents.
20. Counsel for the respondents said to us that Lord Hardie's ministerial responsibility for the passage of the Scotland Bill was known to all concerned in the reclaiming motion and was mentioned in the course of the debate. That point is not made in the answers to the petition. We need not pursue it because counsel for the respondents did not suggest that any knowledge on the part of counsel or anything said in the course of the hearing gave rise to a plea of waiver or acquiescence. On the contrary, the respondents admit on record that the petitioner has not waived his right under article 6(1) of the Convention (ans 18).
21. Lord Hardie gave a detailed Opinion in which he came to the same conclusion as Lord Marnoch and Lord Weir, namely that applications to the supervisory jurisdiction were within the scope of the civil proceedings to which section 21 of the 1947 Act referred (ibid., paras. [5] - [9]). He also expressed his agreement with the obiter dictum of Lord Sutherland in McDonald v Secretary of State for Scotland (supra) that I have quoted and said that he would reject the attempts made to distinguish that case (ibid., para. [8]).

The submission for the petitioner

22. According to the petition, "the petitioner makes no submission as to whether there existed any actual conscious subjective bias on the part of Lord Hardie" (stat. XVII). Counsel for the petitioner submitted that Lord Hardie's advocacy of a provision in the Scotland Bill that would extend the protection of section 21 to the Scottish Ministers, and his expression of a view as to the scope of that section, had the consequence that his participation in the hearing before the Extra Division gave rise to "legitimate doubts as to his objective impartiality" in determining the issues before the court, both on the merits and on the question of leave to appeal. The relative interlocutors were therefore vitiated, both at common law and under article 6(1) of the Convention (eg Procola v Luxembourg, (1996) 22 EHRR 193, at para. [45]; McGonnell v United Kingdom, (2000) 30 EHRR 289, at paras. [53] - [58]).

The submission for the respondents

23. Counsel for the respondents submitted that in his parliamentary comments on the scope of section 21(1) of the 1947 Act Lord Hardie gave a ministerial view rather than a view of his own. It should be assumed that in the light of his judicial oath he approached the decision in the reclaiming motion with an open mind. Cases such as Procola v Luxembourg (supra) and McGonnell v United Kingdom (supra) were distinguishable because in those cases the dual functions of legislator or adviser and of judge were part of the constitution in the jurisdiction concerned. In cases in the United States where a judge had previously expressed an opinion, as counsel or as a law officer, on a question at issue, that had not been held to be a reason for disqualification (Laird v Tatum 409 US 824 (1972); McGrath v Kristensen 340 US 162 (1950)).

Decision

24. The first question is whether the decisions of the Extra Division are invalid by reason of Lord Hardie's participation in them. If they are, the second question is whether we should grant leave to the petitioner to appeal to the House of Lords against the interlocutor of 18 December 2001 or have the reclaiming motion re-heard.
1   Are the decisions invalid?
25. The first question is a short one. The facts are not in dispute and the test that the court has to apply is agreed. It is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v Magill, [2002] 2 WLR 37, Lord Hope of Craighead at paras. [95] and [103]; cf. Millar v Dickson, 2002 SC (PC) 30, Lord Hope of Craighead at paras [63] - [66]; Hoekstra v HM Adv (No 2), 2000 JC 391). If the court is to hold that there was a real possibility of bias (Hoekstra v HM Adv (No 2), supra, Lord Justice General Rodger at p. 401F-G), that possibility must be reasonable rather than fanciful (Doherty v McGlennan, 1997 SLT 444; Bradford v McLeod, 1986 SLT 244) or, as it was put in Porter v Magill (supra), the fears expressed by the complainer must be objectively justified (supra, Lord Hope of Craighead at para. [104]).
26. These general principles are consonant with the principles that have evolved in the case law of the Strasbourg Court (Piersack v Belgium A/53 (1983) 5 EHRR 169, at para. 30; Hauschildt v Denmark A/154 (1990) 12 EHRR 266, at para. 48; Salaman v United Kingdom, ECHR 15 June 2000; cf. Millar v Dickson, supra, at para. [66]; In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, Lord Phillips of Worth Matravers MR at para [83]).
27. The prior involvement of a judge in the passage of legislation that the court is interpreting may constitute a good reason for his being disqualified from sitting (cf. Procola v Luxembourg, supra; McGonnell v United Kingdom, supra); but the rule is not absolute.
28. To answer the primary question in this case we must first decide whether Lord Hardie's involvement in the passage of the Scotland Bill had any material bearing on the question before the Extra Division. In my opinion, it clearly did. When one looks to the issues that were raised in the Parliamentary debates to which I have referred, it is apparent that in exercising his functions as Minister and legislator Lord Hardie did not simply promote an amendment to the 1947 Act that would extend to the Ministers in the devolved government the protection of section 21, leaving aside all questions as to the extent of that protection. He went further by committing himself to the view that under section 21 the Crown was subject only to orders declaratory of the parties' rights and that the protection which he sought for the Scottish Ministers would therefore be such that they would not be subject to coercive orders of the courts. That of course was the central issue before the Extra Division.
29. Looking at the matter in that light and applying the test that I have described, I am of the opinion that these decisions are vitiated by Lord Hardie's participation in them.
30. Cases such as Procola v Luxembourg (supra) and McGonnell v United Kingdom (supra) are distinguishable in that the participation of the judges concerned resulted from a constitutional confusion of legislative and judicial functions. Nevertheless, these cases indicate that in Convention jurisprudence the interpretation of legislation by a judge who has been involved in the enactment of it is, in general, looked on with disfavour.
31. Counsel for the respondents relied on the decision of the Privy Council in Panton v Minister of Finance ([2001] UKPC 33) in arguing that the prior involvement of a law officer in the enactment of a statute does not necessarily disqualify him from adjudicating on the interpretation of it. In that case the President of the Court of Appeal of Jamaica, when he had been a law officer, had signed a certificate of constitutionality in relation to proposed legislation that was later challenged before his court as being unconstitutional. It was held that his participation in the judicial decision on that question was not improper since his part in the legislative process had been a mere formality. This case is distinguishable on this point. The participation of Lord Hardie in the promotion of the legislation, at any rate in relation to sections 21 and 38(2), went far beyond formality. It involved the advocacy of an interpretation of those provisions that the petitioner was later to challenge (cf. Kartinyeri v Commonwealth of Australia ((1998) 156 ALR 300, Callinan J at paras. [29] and [38]; Panton v Minister of Finance, supra, Lord Clyde at para. [13]). In my opinion, active participation of that kind in the passage of the legislation in issue is a clear ground of disqualification. In any event, the legal system in Panton v Minister of Finance (supra) was not governed by the Convention. I am not convinced that the same decision would have been reached on the facts of that case in proceedings under article 6.
32. Counsel for the respondents argued that in his statements in Parliament, Lord Hardie was merely expressing a ministerial rather than a personal opinion. In my view, this consideration does not affect the issue one way or the other. The essential point is that the opinion was expressed in the formal context of the passage of the legislation. For that reason too this case can be distinguished from cases where a judge had previously expressed an opinion, as counsel or as a law officer, on a matter that was before the court (Kartinyeri v Commonwealth of Australia, supra; McGrath v Kristensen, supra; cf. Panton v Minister of Finance, supra, Lord Clyde at paras. [11] - [12]).
33. Counsel for the respondents also submitted that we should assume that when the question came before Lord Hardie in the reclaiming motion, he was able, having in mind his judicial oath, to form a independent view. That, I think, is beside the point. Lord Hardie's personal impartiality in this case is presumed; but, this being a question of public confidence in the administration of justice, we are concerned with the appearance of things. The question has to be decided from the standpoint of the onlooker rather than that of the judge (In re Medicaments and Related Classes of Goods (No. 2), supra). If the test in Porter v Magill (supra) is satisfied, the judicial oath does not provide a sufficient answer (cf. Millar v Dickson, supra¸ Lord Hope of Craighead at para. [65]). That point arises only at the stage when the judge discloses his prior involvement and offers parties the opportunity to object. I will return to that subject later.
34. Since Lord Hardie promoted the relevant provision of the Scotland Act 1998 on which the respondents relied and since in doing so he expressed a view on the point of law that was the central issue before the Extra Division, I think that he ought not to have participated as a member of that Division in the decision on the reclaiming motion. In my opinion, a fair-minded and informed observer assessing all of the circumstances would have concluded that there was an appearance that Lord Hardie's impartiality and objectivity had been compromised. If that conclusion is correct, the same conclusion follows, in my view, in relation to the decision on leave to appeal.
35. The parties agree that if Lord Hardie's contributions to these decisions cannot be allowed to stand, the decisions themselves cannot stand. They agree on this point for the reason given in Hoekstra v HM Adv (No. 2) (supra, at p. 397), namely that since the opinion of one of the judges was invalid, the decision became one of a court that was inquorate. That is a sufficient reason in this case for our holding both decisions to be invalid. I should say, however, that my own view is that in a case like this, the whole decision falls to be set aside, regardless of the question of quorum. One must assume that the members of such a court discussed the issues and that the views of the judge concerned may have contributed to the decision that was reached by all the members of the court. That consideration is sufficient in my view for the conclusion that the decision itself cannot stand (cf. In re Medicaments and Related Classes of Goods (No. 2), supra, at para. 99). In my view, there could have been no other conclusion if the Extra Division had issued a single Opinion of the Court.
36. The result in this case is unfortunate. It highlights a problem that has to be faced from time to time by former law officers who are appointed to the bench. Counsel for the respondents submitted that if we were to hold these decisions to be invalid, the consequence could be that judges who were former law officers would be barred de facto from sitting in a wide range of cases. If that were to be the consequence, I do not see that it would be a good reason not to apply a salutary principle of law. But in my view such fears are exaggerated. In cases such as this, where there is no absolute disqualification of the judge concerned (cf. R v Bow Street Magistrate, ex p. Pinochet Ugarte (No 2), [2000] 1 AC 119), the safeguard is straightforward. The judge should disclose his difficulty to the parties in advance, or at latest at the outset of the hearing (eg In re S (Care Order: Implementation of Care Plan), [2002] 2 WLR 720, Lord Mackay of Clashfern at para [108]). In this way he will give all parties the opportunity to decide whether to object to his taking part in the case or to waive any such objection. That must of course be an informed decision. The judge's disclosure must therefore be made fully. If the problem arises as a result of some unexpected turn in the argument in the course of the hearing, the judge concerned should raise the matter at once. It could be that in such a case the hearing would have to be discharged (cf. Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at para. [26]); but I should think that in many cases of this kind disclosure would be followed by a waiver of any objection on the basis of the mutual confidence of bench and bar.
37. The matter may of course never reach that stage. If the judge realises that there is a problem, he may recuse himself without further ado. As was said in the judgment of the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd (supra, at para. [25]), if there is real ground for doubt, that doubt should be resolved in favour of recusal.
2   Should leave to appeal be granted or should the reclaiming motion be re-heard?
38. The petitioner has a reclaiming motion before the court in the previous process and has a right to have it heard and decided upon. We must therefore decide what further remedy we should give to the petitioner. Counsel for the petitioner moved that, in terms of the prayer of the petition, we should grant leave to appeal to the House of Lords. He relied on case law to the effect that the defect in a decision that has been vitiated in this way may be cured by an appellate court (cf Calvin v Carr, [1980] AC 574, at pp. 589-591; In re Medicaments and Related Classes of Goods (No. 4), [2002] 1 WLR 269, Brooke LJ at paras [23] - [25]). He accepted however that the court had an option to remit the case for a re-hearing of the reclaiming motion before a properly constituted Division.
39. Assuming that it would be competent in this case to grant leave to appeal to the House of Lords, I consider that that course would be inappropriate. No answers have yet been lodged to the petition. The first decision complained of does not exhaust the issues between the parties. It is confined to only one of several preliminary questions. If we were to allow the case to be appealed to the House of Lords there would remain other questions of relevancy, not to mention the substantive human rights question, that have yet to be decided at first instance.
40. In my opinion, the appropriate course is to set the interlocutors aside and to have the reclaiming motion re-heard.

Disposal

41. I propose that we should grant the prayer of the petition to the extent of setting aside the interlocutors of 18 and 20 December 2001; repel the pleas-in-law for the respondents; and appoint the reclaiming motion to the Summar Roll for re-hearing by a new Division.
42. When we heard this case, the petitioner's release from custody was imminent. If the petitioner is at liberty when the reclaiming motion is re-heard, a question may arise whether the Court should entertain a petition for remedies that will no longer be of any practical importance to the petitioner. Counsel for the petitioner referred us to several cases on the question and asked us to decide it at that stage in his client's favour. I need not refer to these cases. In my view, that question can be decided, if and when it is raised, in light of the circumstances then prevailing.
Davidson v. Scottish Ministers [2002] ScotCS 256 (11 September 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Kirkwood Lord Philip	P566/02 OPINION OF LORD KIRKWOOD in PETITION to the nobile officium of the Court of Session of SCOTT DAVIDSON (Assisted Person) Petitioner; against THE SCOTTISH MINISTERS Respondents: _______

 

Act: O'Neill QC, Collins; Drummond Miller, WS

Alt: Brailsford QC, Mure; Richard Henderson, Solicitor to the Scottish Ministers

 

11 September 2002

43. I am in full agreement with the Opinion of your Lordship in the Chair.
44. At the outset it is important to ascertain the principal issue which fell to be determined by the Extra Division consisting of Lord Marnoch, Lord Hardie and Lord Weir. On 24 October 2001 the petitioner, who was an inmate of H.M. Prison, Barlinnie, had lodged a petition for judicial review of a decision to continue his detention in allegedly degrading and inhumane prison conditions contrary to Article 3 of the European Convention on Human Rights. Factual averments were made which related principally to overcrowding, lack of sanitation and lack of an appropriate regime. The petitioner sought inter alia (1) declarator that the conditions of his detention in HM Prison, Barlinnie were incompatible with Article 3 of the European Convention on Human Rights and (2) an order ordaining the Scottish Ministers to secure his transfer to Article 3 compliant conditions, and an interim order to that effect. When the petition for judicial review came before the Lord Ordinary, counsel for the Scottish Ministers took a plea to the competency of granting such an order. Counsel stated that what was being sought by way of an interim order was effectively an order for specific performance against the Scottish Ministers, and submitted that the making of such an order was prohibited by the terms of section 21(1) of the Crown Proceedings Act 1947. The Lord Ordinary held inter alia that the application for an interim order was incompetent, although a declaratory order could be made.
45. The petitioner reclaimed and by interlocutor dated 31 October 2001 an Extra Division appointed the case to the Summar Roll for a hearing on the matter of competency. In the course of the reclaiming motion the petition was amended by the addition of craves for declarators (a) that the order for specific performance sought against the Scottish Ministers could competently be made in an application to the supervisory jurisdiction under Rule of Court 58 and was not precluded by section 21 of the Crown Proceedings Act 1947 and (b) that such an order under section 45(b) of the Court of Session Act 1988 could competently be made and was not precluded by section 21 of the 1947 Act. It is clear from the Opinions of their Lordships of the Extra Division that the issue for the court was the proper construction of section 21 of the 1947 Act and, as Lord Weir observed, the hearing was 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." The Extra Division adhered 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. In particular, Lord Hardie stated (2002 SLT 420 at p.430I) that he rejected the submission that proceedings by way of application to the supervisory jurisdiction of the court fell outwith the ambit of the 1947 Act. The court concluded that applications to the supervisory jurisdiction were within the scope of the "civil proceedings" referred to in section 21. It is thus clear that the principal question which the Extra Division had to determine was whether section 21 of the 1947 Act had the effect of preventing an order for specific performance being made against the Scottish Ministers. On 20 December 2001 the Extra Division, Lord Weir dissenting, refused leave to appeal to the House of Lords.
46. Section 21 of the Crown Proceedings Act 1947 provides inter alia as follows:

"21.-(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; ...

(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."

47. In section 38(2) the definition of "Officer" is in the following terms:

"'Officer,' in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provisions) includes a Minister of the Crown and a member of the Scottish Executive ... "

The words "and a member of the Scottish Executive" were added by paragraph 7(2)(c) of Schedule 8 to the Scotland Act 1998.

48. Your Lordship in the Chair has set out particulars of Lord Hardie's involvement in the passage of the Scotland Bill when he held the office of Lord Advocate. At the Committee Stage in the House of Lords he successfully proposed the said amendment to the definition of "Officer" in section 38(2) of the 1947 Act, the avowed purpose of which was to include the Scottish Ministers within the class of officers of the Crown who, by virtue of section 21 of the 1947 Act, were not subject to court orders ad factum praestandum.
49. When Lord Hardie proposed the amendment on 8 October 1998 he stated inter alia as follows:
50. " ... It also provides that a member of the Scottish executive is an officer in relation to the Crown for the purposes of the Act which puts him in the same position as a Minister of the Crown in the UK Government ... The Government consider it necessary that these amendments should be made on the face of the Bill rather than under clause 96 because they make clear the status which we intend the Scottish administration should have: a part of the Crown separate and distinct from the UK Government, in effect Her Majesty's Government in Scotland in relation to devolved matters ... "
51. On 28 October 1998, at the Report Stage, Lord Mackay of Drumadoon moved an amendment (No.146E) which sought to include a provision in the Bill to the effect that members of the Scottish executive would not be subject to orders for specific performance. Lord Hardie opposed the proposed amendment and stated:

"Amendment No. 146E seeks to protect members of the executive from being subject to orders for specific performance. I would remind your Lordships that Scottish ministers will be part of the Crown and will be protected by the provisions of the Crown Proceedings Act 1947, which at present ensures that the Crown cannot be subject to such orders. Instead, all that the courts can do is to issue a declarator. Therefore, in our view, the amendment is unnecessary".

52. On 2 November 1998, the next day of the Report Stage, Lord Hardie, in relation to another proposed amendment, stated that the Crown Proceedings Act 1947 "prevents the court from making any order for specific performance against the Crown. The Scottish executive will be part of the Crown."
53. In the circumstances it can been seen that Lord Hardie was closely involved in the passage of the Scotland Bill through the House of Lords and that he proposed the amendment to section 38(2) of the 1947 Act. However, in addition to proposing that amendment, he stated to the House what the effect of the amendment would be, namely, that as the Scottish Ministers would, by virtue of the amendment, become part of the Crown, the 1947 Act would prevent them from being subject to orders for specific performance.
54. In this petition to the nobile officium the petitioner avers that he "is reasonably apprehensive that the Extra Division which pronounced the said interlocutors of 18 and 20 December 2001 was not apparently impartial as a result of the participation of Lord Hardie...", and seeks to have these interlocutors set aside and to be granted leave to appeal to the House of Lords against the interlocutor of 18 December 2001. It is important to note that the petitioner does not allege that there was any actual bias on the part of Lord Hardie. What is alleged is that there was an appearance of bias which had the effect of invalidating the decision of the Extra Division of 18 December 2001.
55. The proper approach of the court in a case of this nature is to ascertain all the circumstances on the basis of which the complaint about a judge's participation has been made and, once these facts have been ascertained, to apply the requisite test. In the present case there is no dispute about the factual circumstances, nor is there any dispute as to the terms of the test which falls to be applied. The test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter v. Magill [2002] 2 WLR 37, per Lord Hope of Craighead at para. 103). Further, the fears which have been expressed by the petitioner must be objectively justified (Porter v. Magill, supra, per Lord Hope at para. 104).
56. Article 6(1) of the European Convention of Human Rights provides inter alia as follows:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

57. It is, of course, of the utmost importance that judges should be independent and impartial in order to preserve public confidence in the administration of justice. However, as Lord Hope of Craighead observed in Millar v Dickson 2002 SC (PC) 30 at para.[63]:

"[T]he appearance of independence and impartiality is just as important as the question whether these qualities exist in fact. Justice must not only be done, it must be seen to be done. The function of the Convention right is not only to secure that the tribunal is free from any actual personal bias or prejudice. It requires this matter to be viewed objectively. The aim is to exclude any legitimate doubt as to the tribunal's independence and impartiality....".

Lord Hope went on to observe (at para.[65]) as follows:

"It is no answer for the judge to say that he is in fact impartial, that he abided by his judicial oath and there was a fair trial. The administration of justice must be preserved from any suspicion that a judge..... is not impartial. If there are grounds which would be sufficient to create in the mind of a reasonable man a doubt about the judge's impartiality, the inevitable result is that the judge is disqualified from taking any further part in the case. No further investigation is necessary, and any decisions he may have made cannot stand."

58. If in any case there is real ground for doubt, that doubt should be resolved in favour of recusal (Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at para. 25).
59. These observations accord with the Strasbourg jurisprudence relating to the test which should be applied when the court is considering whether the circumstances give rise to a reasonable apprehension of bias (Piersack v Belgium (1982) 5 EHRR 169; Hauschildt v Denmark (1989) 12 EHRR 266; Procola v Luxembourg (1996) 22 EHRR 193 and McGonnell v United Kingdom (2000) 30 EHRR 289).
60. In Hauschildt v Denmark, supra, at para. 48, the court made the following observations:

"Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public.... Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw....".

61. In Procola v Luxembourg, supra, Procola was a dairy constituted as an agricultural association under Luxembourg law, and sixty three of its members, all farmers, complained of an infringement of their right to an independent and impartial tribunal. They had applied to the Judicial Committee for judicial review of four milk quota orders and, in particular, they had challenged the retrospective application of a new domestic implementation regulation relating to the milk quota system. It was pointed out that four of the five members sitting on the Judicial Committee when it ruled on Procola's application had previously sat on the advisory panel of the Conseil d'Etat which had given its opinion on the draft regulation and drafted a Bill making that regulation retrospective. In the circumstances it was contended that the members of the Judicial Committee could not have approached the question submitted to them, namely whether it was lawful to apply the relevant ministerial orders retrospectively, with a completely open mind. The court observed (in para. 45) that

"Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question...".

62. Similar observations were made in McGonnell v United Kingdom, supra, a case in which the applicant's application for planning permission for change of use of a shed to a dwelling had been refused as the site had been zoned in the Detailed Development Plan as an area where residential development was not allowed. The Bailiff had presided over the States of Deliberation when the Development Plan was debated and adopted, and he had subsequently presided over the Royal Court in the determination of the applicant's planning appeal. The court stated (in paras. 55 and 57) that:

"[A]ny direct involvement in the passage of legislation..... is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue...

The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant's planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court,..."

63. In the present case Lord Hardie's involvement in the passage of the Scotland Bill and, in particular, the amendment to section 38(2) of the 1947 Act, could not be regarded as having been simply a formality (c.f. Panton v Minister of Finance [2001] UKPC 33). On the contrary, Lord Hardie, in his capacity as Lord Advocate, piloted the Scotland Bill through the House of Lords and, in particular, he proposed the amendment to section 38(2) which extended the protection afforded to the Crown by section 21 of the 1947 Act to the Scottish Ministers. Further, Lord Hardie went on to state in the House of Lords, on more than one occasion, that the effect of the amendment would be that Scottish Ministers would be part of the Crown and that the court would thereby be prevented from making an order for specific performance against the Scottish Ministers. This was, of course, precisely the issue which the Extra Division had to determine. In my opinion, Lord Hardie should, at the outset of the hearing, have disclosed to the parties the part which he had played in promoting the amendment to section 38(2) and the views which he had expressed in the House of Lords. That would have given the parties an opportunity, if so advised, to make submissions as to whether it was appropriate that he should sit as a member of the Extra Division. On any view, it seems to me that there was a live issue in this case as to whether he should recuse himself. In the event, the nature and degree of his involvement was not brought to the attention of the parties before, or at any stage during, the hearing. In my opinion, in the particular circumstances of this case and looking at the issue objectively, the fair-minded and informed observer would have reached the conclusion that there was a real possibility of bias, and I consider that the same conclusion falls to be drawn in relation to the court's decision to refuse leave to appeal to the House of Lords. It follows, in my opinion, that these two decisions cannot stand.
64. The question then arises as to what remedy should now be afforded to the petitioner, namely, whether the reclaiming motion should be re-heard or whether leave to appeal to the House of Lords should be granted. For the reasons given by your Lordship in the Chair, I agree that it would not be appropriate to grant leave to appeal to the House of Lords and that the case should be remitted for a re-hearing of the reclaiming motion before a differently constituted Division.

 

Davidson v. Scottish Ministers [2002] ScotCS 256 (11 September 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Kirkwood Lord Philip	P566/02 OPINION OF LORD PHILIP in PETITION to the nobile officium of the Court of Session of SCOTT DAVIDSON (Assisted Person) Petitioner; against THE SCOTTISH MINISTERS Respondents: _______

 

 

Act: O'Neill QC, Collins; Drummond Miller, WS

Alt: Brailsford QC, Mure; Richard Henderson, Solicitor to the Scottish Ministers

 

11 September 2002

65. This is a petition to the nobile officium of the court. The petitioner seeks to have set aside two interlocutors of an Extra Division of the Inner House on the ground that one of the judges should not have participated in the determination of the issue before the court, or at least should have declared his earlier involvement with that issue.
66. The petitioner is presently a prisoner in H.M. Prison, Barlinnie. On 24 October 2001 he lodged a petition for judicial review seeking (1) declarator that the conditions of his detention in the prison were incompatible with Article 3 of the European Convention on Human Rights; (2) an order ordaining the Scottish Ministers to secure his transfer to conditions which were compliant with Article 3; (3) an interim order to that effect, and (4) damages. On 26 October 2001 the Lord Ordinary refused the petitioner's motion for an interim order for specific performance on the grounds of incompetency, lack of prima facie case and balance of convenience. The Lord Ordinary granted leave to reclaim and on 30 October 2001 an Extra Division (different in composition from the Division whose interlocutors are now complained against) appointed the case to the summar roll on the matter of competency alone.
67. The reclaiming motion, restricted to that matter, was heard in November and December 2001 by an Extra Division consisting of Lord Marnoch, Lord Hardie and Lord Weir. On the third day of the seven day hearing the petitioner was allowed, without opposition, to amend the petition by adding the following craves: (a) for declarator that an order ordaining the Scottish Ministers to transfer the petitioner to other conditions of detention might competently be made in an application to the supervisory jurisdiction of the Court of Session under Rule of Court 58 and was not precluded by the operation of section 21 of the Crown Proceedings Act 1947; and (b) for 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 1998 might competently be made and was not precluded by the operation of section 21 of the 1947 Act. These new craves were accompanied by supporting pleas in law. On 18 December 2001 the Extra Division refused the petitioner's reclaiming motion on the ground of competency. That decision is reported as Davidson v. Scottish Ministers 2002 SLT 420. On 20 December 2001, Lord Weir dissenting, the Extra Division refused leave to appeal to the House of Lords.
68. In the present petition the petitioner asks the court to set aside the interlocutors of the Extra Division dated 18 and 20 December 2001 and to grant him leave to appeal to the House of Lords against the interlocutor of 18 December 2001. He asks the court to grant these remedies on the ground that the Extra Division was not apparently impartial as a result of the participation of Lord Hardie. This lack of impartiality, he contends, arose in the following way. The question at issue before the Extra Division was whether or not section 21 of the Crown Proceedings Act 1947 had the effect of preventing the court from pronouncing orders for specific performance, whether interim or final, against the Scottish Ministers in any form of proceedings, including proceedings for judicial review. In October and November 1998 Lord Hardie, while holding the office of Lord Advocate in the United Kingdom Government, was involved in the active promotion of the Scotland Bill before Parliament. In debates on the Bill in the House of Lords he advised the House on more than one occasion that the Scottish Ministers, as officers of the Crown, would be protected by the provisions of section 21 of the 1947 Act from orders for specific performance being pronounced against them by the court. This, argues the petitioner, was the very point which Lord Hardie was subsequently required to decide upon in the petition before the Extra Division.
69. Section 21 of the Crown Proceedings Act 1947 provides -

"21.-(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; ...

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."

"Civil proceedings" are defined in the interpretation section of the Act, section 38(2), as including proceedings in the High Court or the County Court for the recovery of fines or penalties but not including proceedings on the Crown side of the King's Bench Divisions. Section 43(a) provides that, in its application to Scotland, the reference to the High Court is to be read as a reference to the Court of Session.

Section 38(2) also defines "Officer" in relation to the Crown as including a Minister of the Crown. That definition was amended by the Scotland Act 1998, section 25(1) and schedule 8, paragraph 7(2)(c) to include a member of the Scottish Executive.

70. It is not in dispute that the question at issue in the reclaiming motion before the Extra Division in Davidson v. The Scottish Ministers was the proper construction of section 21 of the 1947 Act, and in particular the matters focused in the two craves for declarator added by amendment to which I have already referred. The petitioner's principal argument was that proceedings under the supervisory jurisdiction of the Court of Session did not fall within the definition of "civil proceedings" as defined in section 38(2) of the 1947 Act, and accordingly an order for specific performance might competently be made against the Scottish Ministers in an application to the supervisory jurisdiction. That argument was rejected by the court.
71. During the passage of the Scotland Bill in the House of Lords, Lord Hardie, at the Committee Stage, successfully moved the amendment already referred to which modified the Crown Proceedings Act to include the Scottish Ministers in the definition of officers of the Crown, thereby affording them the protection of section 21 of that Act. His Lordship indicated that the Government's intention was to create the Scottish Executive and its members as a part of the Crown separate and distinct from the United Kingdom Government, in effect Her Majesty's Government in Scotland in relation to devolved matters. In later debates at the Report Stage the Opposition put forward amendments which sought to make express provision on the face of the Bill for the protection of members of the Scottish Executive against orders of the court for specific performance. In refusing to accept those amendments Lord Hardie expressed the view of the Government that they were unnecessary since the Scottish Ministers were protected by section 21 by virtue of his own earlier amendment. It is clear, therefore, that in the debates in the House of Lords, Lord Hardie expressed an opinion on the precise issue which was subsequently for determination by the Extra Division. Your Lordship in the chair has set out the passages from Hansard recording Lord Hardie's speeches at the relevant stages in the passage of the Bill, and I need not repeat them.
72. There is no suggestion that Lord Hardie in taking part in the decision on the reclaiming motion was the subject of any conscious subjective bias, nor in my view could there be any grounds for making such a suggestion. Rather the petitioner's contention was that Lord Hardie's expression of opinion in the debates in the House of Lords was sufficient to raise doubts as to his apparent objective impartiality in the determination of both the reclaiming motion itself and the motion for leave to appeal.
73. The test that has to be applied to the question before this court was not in dispute. It has recently been affirmed by Lord Hope of Craighead in Porter v. Magill ([2002] W.L.R. 37 at paragraph 103)

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

It is not the court's own view of the possibility of bias that is relevant, but the court's view of the fair-minded informed observer's view. In Miller v. Dickson (2002 SC (PC) 30 at paragraph [63]) Lord Hope stressed that the appearance of independence and impartiality were just as important as the question whether these qualities existed in fact. His Lordship said,

"Justice must not only be done, it must be seen to be done. The function of the Convention right is not only to secure that the tribunal is free from any actual personal bias or prejudice. It requires this matter to be viewed objectively. The aim is to exclude any legitimate doubt as to the tribunal's independence and impartiality".

His Lordship went on to say that it was no answer to say, as the respondents in the present petition did, that the judge must be taken to have abided by his judicial oath.

"If there are grounds which would be sufficient to create in the mind of a reasonable man a doubt about the judge's impartiality, the inevitable result is that the judge is disqualified from taking any further part in the case. No further investigation is necessary, and any decisions he may have made cannot stand."

74. The test enunciated by Lord Hope was derived, with one minor modification, from the test adopted in in Re Medicaments and Related Classes of Goods (No. 2) ([2001] 1 WLR 700). In that case Lord Phillips of Worth Matravers specifically mentioned that in framing the test "the Strasbourg jurisprudence" had been taken into account. Before us two cases in the European Court of Human Rights were cited in detail. They were Procola v. Luxembourg ([1996] 22 EHRR 193) and McGonnell v. The United Kingdom ([2000] 30 EHRR 289). In both cases a member or members of the deciding tribunal had been actively and formally involved in the preparatory stages of the regulation on the applicability of which the tribunal had to decide. The approach adopted by the court in both cases was in conformity with the approach set out by Lord Hope in Porter v. Magill. In McGonnell the court said that it was faced solely with questions of whether the member of the deciding tribunal had the required appearance of independence, or the required objective impartiality. The court went on to say that any direct involvement in the passage of legislation was likely to be sufficient to cast doubts on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons existed to permit a variation from the wording of the legislation in question. In Procola the issue was whether the Judicial Committee of the Conseil d'Etat of Luxembourg satisfied the impartiality requirement of Article 6 when four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity. It was held that the applicant had legitimate grounds for fearing that the members of the Committee had felt bound by the opinion previously given and that that doubt in itself, however slight its justification, was sufficient to vitiate the impartiality of the Tribunal.
75. The respondents relied on the Privy Council case of Panton v. The Minister of Finance (Jamaica) ([2001] UKPC 33), which at first sight might appear difficult to reconcile with the cases already cited. In that case the appellants challenged an Act of the Jamaican Parliament on the ground that it was contrary to the constitution. The President of the Court of Appeal before which the case came for determination had previously, while holding the office of Attorney General, signed a certificate to the effect that the Act was not contrary to the constitution. The Privy Council nevertheless held that the appellants' contention of bias had not been made out. The first point to be made about the case of Panton is that Article 6 of the European Convention on Human Rights had no application. Apart from that, however, there are a number of indications in the judgment of the Privy Council that the decision would have been different had the President of the Court of Appeal been more closely involved in the promotion of the legislation. Lord Clyde, in delivering the judgement of the Privy Council, emphasised that the opinion of the Attorney General as to the constitutionality of the Act fell to be equiparated with an opinion previously given by him as counsel, or with a previous judicial decision given by him. The existence of neither of these would normally affect the independence of a judge. Lord Clyde also pointed out that the granting of the certificate of constitutionality involved no consideration of any particular element of the legislation or any particular application of the law. But significantly, his Lordship said that the absence of any significant role played by the President of the Appeal Court in the passing of the legislation was a point of some importance. Referring to Kartinyeri v. Commonwealth of Australia ((1998) 156 A.L.R. 300), he indicated that had the judge introduced the legislation or campaigned for it or been responsible for securing its passage through Parliament, there might have been material upon which the appellants could have founded an argument. In the case of Kartinyeri the plaintiffs argued that Callinan J. should not sit as a member of the High Court of Australia in that case because certain aspects of a joint opinion provided him and a fellow barrister while at the Queensland Bar addressed to the Senate Legal and Constitutional Affairs Committee in relation to a certain Bill, allegedly prejudged the issues to be determined by the court. At paragraph 29 Callinan J. said,

"My position is, I think, quite different from that of a person who before coming to the bench has been directly involved in the preparation of legislation that has to be construed by the court, and who has taken active steps as principal law officer of the Commonwealth to seek to ensure the passage of a Bill and to propound to the Governor's Advocate General the Senate's failure to pass it as a basis for a double dissolution. These were some of the circumstances that led Murphy J. to stand aside in Victoria v. The Commonwealth and Connor. There were other closely related steps taken by His Honour there when he was the Attorney General concerning that Act."

76. These dicta lead me to the view that had the President of the Court of Appeal in Panton been involved in the promotion of the legislation then the result of the case might well have been different. That would be consistent with the approach of the European Court of Human Rights in McGonnell.
77. While it is clear that Lord Hardie was actively involved in securing the passage of the Scotland Bill through Parliament, the respondents were at pains to point out that the Extra Division were concerned with the construction of a different piece of legislation, the Crown Proceedings Act. I have come to the view that that fact would not remove from the mind of the fair minded and informed observer a doubt as to the judge's apparent objective impartiality. As I have already said, the provisions of the Scotland Act which resulted from Lord Hardie's amendment proposed at the Committee Stage, had the effect of amending the 1947 Act to bring the Scottish Ministers within its ambit. The opinion expressed by Lord Hardie in the House related to the effect of section 21 of the 1947 Act in the light of the amendment proposed by him. The form in which the Scotland Bill was subsequently enacted was determined by the construction of the 1947 Act which Lord Hardie gave to the House. So the ultimate form of the Scotland Act depended upon that construction. I do not think that the fair-minded and informed observer would see any substantial distinction between Lord Hardie's subsequent participation in the determination of the question before the Extra Division and the position of a judge who participated in the interpretation of a statute which he had previously piloted through the legislature. In these circumstances I agree with your Lordship in the Chair that Lord Hardie ought not to have participated as a member of the Extra Division in the determination of the reclaiming motion. In that situation the same considerations must apply to the determination of the motion for leave to appeal to the House of Lords.
78. As your Lordship in the Chair has indicated, the parties are agreed that if Lord Hardie should not have participated in the decision on the reclaiming motion then the decision of the court cannot stand. If the decision of one judge is invalid then the two remaining judges cease to constitute a quorum. See Hoekstra v. H.M. Advocate (No. 2) (2000 J.C. 391). Since that is sufficient to require the decision of the Extra Division to be set aside, I prefer to reserve my opinion on the question as to whether the decision also falls to be set aside because it has to be assumed that the members of the court discussed the issues and the other judges took account of the views of Lord Hardie in coming to their opinions.
79. As to how the matter should be disposed of, I agree, for the reasons given by your Lordship in the Chair, that the appropriate course is to set aside the interlocutors and to allow the reclaiming motion to be reheard.