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FIRST
DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Macfadyen
Lord Nimmo Smith
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[2006] CSIH 52
P1056/02; P573/03;
P1596/03;
P1651/03 and P828/04
OPINION OF THE COURT
delivered by THE LORD PRESIDENT
in
THE PETITIONS
of
ANDREW SOMERVILLE, WILLIAM CAIRNS, SAMUEL RALSTON, RICARDO BLANCO and DAVID HENDERSON
Petitioners and Respondents;
against
THE SCOTTISH MINISTERS
Respondents and Reclaimers:
_______
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Act: O'Neill, Q.C., Collins,
Carmichael; Balfour & Manson (Taylor
& Kelly, Coatbridge) (Petitioners and Respondents)
Alt: Brailsford, Q.C., Wolffe,
Ross; Office of the Solicitor to the
Scottish Executive (Respondents and Reclaimers)
3 November 2006
Introduction
[1] This is the
Opinion of the Court to which each of its members has contributed
substantially.
[2] On 8
February 2005
the Lord Ordinary pronounced, in each of five petitions for judicial review, an
interlocutor in which she gave effect to her decisions on certain legal issues
earlier argued before her. The Scottish
Ministers, who are respondents to each of the petitions, have reclaimed against
the interlocutor pronounced in the petitions at the instance of David
Henderson, Ricardo Blanco and William Cairns in so far as each interlocutor
repelled certain pleas advanced by them (pleas 1, 3 and 4) directed to issues
of time-bar. These issues were not
raised in the petitions at the instance of Andrew Somerville or Samuel
Ralston. Each of the petitioners has, in
respect of a range of other issues, cross-appealed against the Lord Ordinary's
interlocutor in his case.
[3] The
petitioners were each convicted of serious crimes and sentenced to custodial
terms: Somerville, Ralston, Blanco and
Henderson to long terms of imprisonment and Cairns to a long period of detention in a
Young Offenders Institution. While in
custody each was, for a period or for a number of distinct periods, removed
from association with other prisoners ("segregated") in implement of orders purportedly
made under Rule 80 of the Prisons and Young Offenders Institutions (Scotland)
Rules 1994 (SI 1994/19310 (as amended) ("the 1994 Rules"). The petitioners each contend that the order
or orders affecting him, together with the grants and renewals of authority
extending the length of the relative period or periods of segregation, were
unlawful. These contentions are advanced
at common law and on the basis of alleged infringements of the petitioners'
rights under the European Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention").
They seek certain remedies, including declarators and awards of damages.
[4] Rule 80 of
the 1994 Rules, in so far as material, provides:
"(1) Where
it appears to the Governor desirable for the purpose of -
(a) maintaining
good order or discipline;
(b) protecting
the interests of any prisoner; or
(c) ensuring
the safety of other persons,
he may order in writing that a
prisoner shall be removed from association with other prisoners, either
generally or during any period the prisoner is engaged or taking part in a
prescribed activity.
(2) If
the Governor makes an order under paragraph (1) in relation to a prescribed
activity, he may specify only one prescribed activity in the order.
[Rule 80(3) defines each of six
prescribed activities.]
...
(4) If
the Governor makes an order under paragraph (1), he shall -
(a) specify
in the order whether the removal from association is -
(i) in
general; or
(ii) in
relation to a prescribed activity;
(b) if
the removal is in relation to a prescribed activity, specify which
activity the order relates to;
(c) specify
in the order the reasons why he is making it;
(d) record
in the order the date and time it is made; and
(e) explain
to the prisoner the reasons why the order is made and provide
him with a copy of the written order.
(5) A
prisoner who has been removed from association generally or during any period
he is engaged in or taking part in a prescribed activity by virtue of an order
made by the Governor in terms of paragraph (1) shall not be subject to such
removal for a period in excess of 72 hours from the time of the order, except
where the Scottish Ministers have granted written authority on the application
of the Governor, prior to the expiry of the said period of 72 hours.
(6) An
authority granted by the Scottish Ministers under paragraph (5) shall have
effect for a period of one month commencing from the expiry of the period of 72
hours mentioned in paragraph (5) but the Scottish Ministers may, on any
subsequent application of the Governor, renew the authority for further periods
of one month commencing from the expiry of the previous authority.
...
(8) The
Governor -
(a) may
-
(i) cancel
an order under paragraph (1) at any time if he considers
it appropriate to do so;
(ii) vary
an order made under paragraph (1) in terms of which
the prisoner has been removed from
association generally in order to restrict the effect of that order to removal
from association during any period the prisoner is engaged in or taking part in
any one or more prescribed activities as he may specify in the variation order;
(iii) if
appropriate, further vary an order under paragraph (1) which
has previously been varied under
subparagraph (ii) above by further restricting the number of prescribed
activities to which removal from association applies; or
(b) shall
cancel any order under paragraph (1) if a medical officer advises on medical
grounds that he should do so.
...
(9) If
a prisoner is moved by the Scottish Ministers from any prison to any other
prison in terms of section 10 of the Act, any order under paragraph (1), or any
authority under paragraph (5), made or granted in relation to the prisoner
while confined in the former prison shall cease to have effect, but without
prejudice to the power of the Governor of the prison to which the prisoner is
moved to make a new order under paragraph (1).
... ."
[5] The issues
which were raised by the parties in the reclaiming motion, and which are
discussed in the following sections of this Opinion, are given these headings:
Recovery of documents and Public Interest Immunity (paragraphs [6] to [21]);
Statutory time-bar (paragraphs [22] to [89]); Mora (paragraphs [90] to [95]); Carltona (paragraphs [96] to [105]);
Proportionality (paragraphs [106] to [126]; Adequacy of reasons (paragraphs
[127] to [167]); and Procedural and pleading issues (paragraphs [168] to [175]).
Recovery of documents
and Public Interest Immunity
Introduction
[6] In this
section we consider the relationship between the petitioners' entitlement to
recover certain documents and a decision of the Minister for Justice that a claim
for Public Interest Immunity (PII) ought to be made for some of these
documents, in whole or in part. Some
months prior to the substantive hearing before the Lord Ordinary commission and
diligence was granted to the petitioners for recovery of the documents called
for in various specifications of documents lodged on behalf of each of the
petitioners. We have not been invited to
consider the full terms of these specifications, but it appears from the Lord
Ordinary's Opinion that the documents in question related to the background to
and the making of the decisions to segregate the petitioners. Mr C J MacAulay QC was appointed Commissioner.
[7] The Scottish
Ministers were the only havers. They
produced several hundred documents in response to the various calls. In many instances there were, however, parts
blacked out so as to delete certain references, names and passages. In some cases, entire pages were blacked out. This was because the Minister for Justice had
formed the view that the disclosure of these parts would be contrary to the
public interest in that it would cause real harm to the work of the Scottish
Prison Service ("SPS"). PII certificates
were lodged in each case which set out in detail the fact that she had formed
that view and the reasons why disclosure would cause such harm. The relevant passage, which is the same in
all the PII certificates, is set out below.
(It appears that the expression which has come to be used for the
process of blacking out passages in documents in circumstances such as the
present so as to render these passages illegible is "redaction". This seems to be derived from that sense of
the word which relates to putting a written work into appropriate form for
publication; we use it out of deference to the fact that it was used by the
Minister for Justice and by counsel before us.)
[8] The
petitioners, however, insisted on seeking to recover the documents in an
unredacted form, except in so far as the redacted parts expressly disclosed the
identities of any of the persons referred to in the PII certificates. By agreement between the parties, and in
accordance with a protocol, the terms of which are set out below, counsel for
the petitioners were able to consider the redacted parts of the documents, with
the exception of those parts in respect of which the above concession had been
made. They had, accordingly, prior to
the hearing before the Lord Ordinary, had sight of all the documents for which
PII was claimed in an unredacted form, apart from the redaction of identities
as provided for in the protocol. It
should also be mentioned that in the course of the proceedings before the
Commissioner certain other passages were redacted because they contained
material which was confidential to third parties and which was not within the
terms of the specifications. No issue
was taken with this. The Lord Ordinary
heard submissions about the outstanding issues in camera, the only persons present being the parties' counsel and
agents. In her interlocutor dated 8
February 2005
in each petition the Lord Ordinary, inter
alia, refused to order that the documentary material covered by the
relative PII certificate be produced for inspection by the court or to the
petitioner. The petitioners now appeal
against this decision.
The reasons for the PII certificates
[9] In making her
decision to grant the PII certificates the Minister for Justice personally
examined the full unredacted text of each of the documents. In the certificates she stated that with the
benefit of advice from Mr Michael Duffy, the Director of Prisons in the SPS
(who had provided an affidavit) and other officials in SPS, she had satisfied
herself that for the reasons of public interest set out in the certificates,
certain references, names and passages in the documents attracted PII. That material had therefore been
redacted. She stated in each certificate
that the first and paramount question for her was whether the material
attracted PII. The approach that she had
adopted was to focus specifically on the damage that would be done by
disclosure of particular documents.
Accordingly, she had not asserted PII unless she believed that
disclosure of a document or piece of information would cause real harm to the
public interest. If, applying the real
harm test, the material attracted PII, the second question for her was whether
the public interest in non-disclosure was outweighed by the public interest in
disclosure of the material for the purposes of doing justice in the
proceedings. She stated that it was open
to her to consider and balance the relevant competing public interests and to
agree to the disclosure of material that attracted PII if she was satisfied
that the overall public interest favoured disclosure. This had, on occasion, caused her to disclose
material which would otherwise attract PII.
[10] The Minister
stated that the aims of the SPS, in this context, were to ensure that prisoners
did not escape, to secure the preservation of the safety of staff, prisoners
and other persons working in prisons, and of their relatives, friends and
associates, to see that good order was maintained and to prevent the commission
of crime. There was a very clear public
interest in the maintenance of a regime which would assist in the achievement
of those aims, and there was an obvious and widely recognised need to preserve
the effectiveness of the measures taken by SPS to secure them. She was satisfied that disclosure of
particular information contained within the documents would cause real harm to
the work of SPS and the safety of those mentioned above. In paragraph 7 of each certificate she
stated:
"7. The
reason why disclosure would cause such harm is that the relevant parts of the
documents in the Annex include information of one or more of the following
kinds:
a. information relating to persons providing information or
assistance in
confidence to SPS staff, disclosure
of which would endanger or risk endangering the persons concerned or other
persons or would impair or risk impairing their ability or willingness to
continue providing information or assistance, or the ability of SPS staff to
obtain information and assistance from the persons concerned or other persons;
b. information relating to the
identity, appearance, deployment or training
of members of SPS staff, disclosure
of which would endanger or risk endangering them or other individuals or would
impair or risk impairing their ability to operate effectively as members of SPS
staff or the ability of those services to recruit and retain staff in the
future;
c. information received in
confidence by SPS from outside sources,
disclosure of which would jeopardise
or risk jeopardising the provision of such information in the future;
d. information relating to
operations and the capabilities of SPS staff,
disclosure of which would jeopardise
present and future intelligence-gathering operations and capabilities;
e. information relating to any
method, technique or equipment deployed
by SPS staff, disclosure of which
would reduce or risk reducing the value of the method, technique or equipment
in current or future operations;
f. other information likely to
be of use to prisoners or their families or
contacts, and disclosure of which
would impair or risk impairing the performance by SPS of their functions;
g. information as to the methods
by which information and intelligence is
gathered directly or indirectly by
SPS staff, and as to the methods by which information or intelligence material
is recorded, analysed, assessed and internally presented or reported and the
use made of intelligence material;
h. information relating to the
management of incidents of disruptive
behaviour, disorder or concerted
action on the part of prisoners; the
role and deployment of SPS staff and other agencies in response to such
incidents; and the strategies, tactics,
techniques and resources for dealing with such incidents."
[11] The Minister
went on to state that the general nature of the concerns set out in the
preceding paragraph needed little elaboration.
They were aimed at protecting the integrity of SPS operations and the
safety and usefulness of those who worked for SPS or provided information to
them, including organisations outside the Scottish Prison system. The provision of intelligence to SPS by third
parties, whether inside or outside the prison system, relied on those third
parties having confidence that the information, and their part in assisting
SPS, would not be disclosed. To disclose
in breach of such confidentiality created a serious risk that such information
would be less readily forthcoming in the future. The Minister was particularly concerned for
the safety of those people, usually but not always prisoners, who provided
information in confidence to prison staff.
She noted, from Mr Duffy's affidavit, that the disclosure of the
identity of such informers would place them in very great danger of physical
harm. In the case of each redaction she
was satisfied that disclosure of the information redacted would cause real harm
for one or more of the reasons set out above, and therefore that that
information should be withheld.
[12] Mr Duffy's
affidavit was before the Lord Ordinary, who summarised it in her Opinion. He had management responsibility for security
and intelligence systems in SPS and responsibility for its operational
stability. He explained how and why the
gathering of intelligence could be crucial to managing a prison effectively,
why it was necessary to maintain confidentiality regarding intelligence, why it
was necessary to restrict access to and knowledge of intelligence systems, and
why it was necessary to restrict access to knowledge of the prison service's
incident management strategies and capacity.
The effective management he had in mind concerned, largely, the
avoidance of violence, escapes, possession of illicit articles, disruptive
incidents and bullying. SPS used a
standard form, known as an IIR form, for reporting intelligence and information
gathered by staff. This was a crucial
element within the system. A significant
number of the redacted documents were IIR forms. Disclosure of the full information contained
in an IIR form would allow identification of the person who had submitted the
information, the evaluation of it and the action taken as a result. The evaluation code enabled a degree of
identification of the source of the information in respect that it could be
deduced whether the source was a prisoner or a prison officer. This might be enough to enable a prisoner to
work out which individual had provided the information. Mr Duffy also expressed concern that
disclosure of the redacted parts of the IIR forms would enable prisoners to
work out SPS's methodology and strategies for dealing with particular types of
intelligence, which could have serious outcomes. If the redacted parts of documents relating
to certain incidents at HMP Shotts and HMP Glenochil referred to in the
pleadings were disclosed, given the need to protect the confidentiality of the
strategies, tactics, resources and equipment used and available for dealing
with such incidents, individuals would be put at serious risk of harm and SPS's
ability to manage incidents safely and effectively would be compromised.
Examination of redacted documents by
petitioners' counsel
[13] The protocol
referred to above was in the following terms, which we reproduce in full for
the benefit of those considering a similar procedure:
"1. Aidan
O'Neill QC and Simon Collins and Ailsa Carmichael, Advocates (hereinafter "the
petitioners' counsel") will be permitted to examine documents in respect of
which PII is asserted for the purposes of considering whether or not to advance
any argument that the Court should over-ride the Lord Advocate's [sic] assertion of PII in respect of any
of those documents or any of their contents.
This protocol sets out the basis upon which they will be permitted to do
so.
2. The
documents which the petitioners' counsel will be permitted to examine are those
documents which fall within the calls of the specification and in respect of
which PII is asserted. The documents
which they will be permitted to examine will be marked so as to obscure the
names and addresses of: (a) any informer; and (b) any other person whose
identity, if disclosed, would put that person at risk of harm, whether physical
or otherwise.
3. The
examination will take place at SPS Headquarters, The Gyle, Edinburgh at a time
to be agreed. A room will be made
available to the petitioners' counsel where they will be permitted to examine
the documents outwith the presence of any other person. Counsel for the Lord Advocate, a
solicitor from OSSE and an appropriate member or members of SPS staff will be
available (but not present in the same room) to provide any explanation which
may be requested by the petitioners' counsel as to why PII has been asserted in
respect of a particular document or entry in a document.
4. The
documents are being made available for inspection by the petitioners' counsel
on a counsel-to-counsel basis. The petitioners' counsel will not disclose the
contents of the documents to any other person (including, for the avoidance of
doubt but without prejudice to the generality, any of the petitioners or any
agent instructed by the petitioners) unless and to the extent that the Court
should decide that the document should be disclosed notwithstanding the
assertion of PII.
5. When
inspecting the documents, the petitioners' counsel may make notes on their
respective laptops. The notes made: (a) will not be printed out; (b) will not
be copied onto any disc or other medium of electronic storage apart from the
hard drive of the laptop; (c) will not be e-mailed (whether between the
petitioners' counsel or to any third party); and (d) will be deleted from the
hard drive of the laptop after all issues arising from the assertion of PII
have been finally resolved whether by agreement or ruling by the Court.
6. The
parties agree that any further procedure involving the documents (including any
hearing before the Court at which the Court is invited to require disclosure of
any document notwithstanding PII and any commission) should take place in camera and that the only persons who
will be present on behalf of the petitioners shall be the petitioners'
counsel. They will concur in any motion
which may be required in that regard."
The Lord Ordinary records that counsel for the petitioners
examined the documents in accordance with the protocol, taking two full
afternoons to do this and make notes on their laptop computers. They had, accordingly, prior to the hearing
before her had sight of all the documents for which PII was claimed in a form
which was unedited apart from the blacking out of identities as provided for in
the protocol.
The Lord Ordinary's decision
[14] After
considering the authorities which, so far as relevant for present purposes, are
set out below, the Lord Ordinary sought to apply the relevant law to the facts
and circumstances of the present petitions. She did not agree to examine the
redacted passages herself. She stated
that the petitioners sought to have the material covered by the PII
certificates made available to them, other than that which was blacked out to
protect express identities. Despite
their counsel having seen the material sought, they did not specifically
identify any document or part of a document as being required for the
furtherance of any specific issue in any one of the individual cases. They were apparently content to rest their
assertion that the material was required on the general proposition that they
required to see what evaluation of intelligence had been made without relating
it to any particular period of segregation or any particular petitioner. The petitioners' counsel had had ample
opportunity to examine the material withheld and identify what, in particular, they
required for the purposes of their cases, and why. In these circumstances, the Lord Ordinary
could not conclude that the petitioners had made out a case that the material
sought was likely to give substantial support to any specific issues identified
in their cases. She did not, as she put
it, in short, find that there were definite grounds for expecting to find
material of real importance to the petitioners.
Separately, it seemed to her clear that the balance between the public
interest in non-disclosure and the petitioners' interests in disclosure for the
purposes of these petitions weighed heavily in favour of refusing to order that
the PII material be disclosed. Any risk
to the security and safety of Scottish prisons, seven of which were involved in
these petitions, required to be regarded as being of high public
importance. The petitioners' interests
in the pecuniary remedies that they sought in these petitions did not fall to
be regarded in the same light.
Furthermore, she could not, on the petitioners' averments and the
submissions made on their behalf, conclude that the recovery of the materials
sought would, in any event, make any material difference to the presentation of
their cases.
The applicable law and the issues in
the appeal
[15] It was not in
dispute before the Lord Ordinary, and again before us, that the Minister was
entitled to be satisfied that disclosure of the information redacted would
cause real harm for the reasons set out in the PII certificates, or that the
claim for PII was asserted on a justifiable basis. Again, there was no dispute that the Scottish
courts have an inherent power to override such an objection by a Minister if
other aspects of the public interest require it: Glasgow
Corporation v Central Land Board
1956 SC (HL) 1. In that case, Lord
Radcliffe said, at page 18:
"The power reserved to the Court is
therefore a power to order production even though the public interest is to
some extent affected prejudicially. This
amounts to a recognition that more than one aspect of the public interest may
have to be surveyed in reviewing the question whether a document which would be
available to a party in a civil suit between private parties is not to be
available to the party engaged in a suit with the Crown. The interests of government, for which the
Minister should speak with full authority, do not exhaust the public
interest. Another aspect of that
interest is seen in the need that impartial justice should be done in the Courts
of law, not least between citizen and Crown, and that a litigant who has a case
to maintain should not be deprived of the means of its proper presentation by
anything less than a weighty public reason."
[16] The task of
the court is therefore to balance two competing aspects of the public interest. The question which then arises is how this
should be done in any particular case, in accordance with the general law and
the practice and procedure of the court.
In the grounds of appeal for the petitioners it is alleged that the Lord
Ordinary erred in law in asserting that the petitioners had not made out a case
that the material sought was likely to give substantial support to any specific
issues identified in their cases and that she did not find that there were
definite grounds for expecting to find material of real importance to the
petitioners. It is stated that the Lord
Ordinary was advised, on the authority of senior counsel for the petitioners,
that the redacted material which the Lord Ordinary had not seen did contain
information relevant to and important for establishing each petitioner's case
and challenging or testing the case for the Scottish Ministers. She chose not to accept this assurance,
however, and, as it is put in the grounds of appeal, referred to it as a
"generalisation" not related to the "specifics" of the case. She made these observations while aware, from
the terms of the protocol, that counsel for the petitioners were not permitted
to disclose the actual contents of any of the documentation to her. In the whole circumstances, it is alleged,
the Lord Ordinary was unfair and made an error of law. The grounds of appeal continue with the
statement that a motion in respect of the PII material made to the Lord
Ordinary on behalf of the petitioners was that she, "or some Article 6
compliant independent and impartial tribunal or judge", should, in private
session, examine the documentation in respect of which PII was being claimed
and hear the submissions of counsel for both parties in relation to the
specifics of this documentation and why it should, or should not, be made
available for use in court, and under what conditions, if any. It is alleged that in refusing this motion
(which was made only after counsel for the petitioners had, after inspection of
the full documentation, judged that there was material of sufficient importance
to the petitioners' cases such as should outweigh the claim of PII made
therefore by the respondents) the Lord Ordinary acted in a manner incompatible
with the requirements of Article 6 and hence unlawfully as contrary to section
6 of the Human Rights Act 1998.
[17] The invocation
of Article 6 by counsel for the petitioners led to much discussion before the
Lord Ordinary and in written notes of argument lodged by the parties before the
hearing of this reclaiming motion. At
the hearing, however, during the course of several exchanges between counsel,
Mr Wolffe on behalf of the Scottish Ministers recognised that the court would
wish to adopt a procedure which was compatible with Article 6, and Mr O'Neill
for the petitioners said that he did not need a finding from the court that
Article 6 was engaged. Counsel were
therefore agreed that the question was one of fairness as between the parties,
and that the question for this court was one of practice. This being so, it is unnecessary for us to
discuss the European cases to which reference was made at earlier stages: indeed, Mr O'Neill (rather
uncharacteristically) described the European cases as an "irrelevant sideline".
[18] This being so,
we can confine our reference to authority to the following cases. In Air
Canada v Secretary of State for Trade
[1983] 2 AC 394 Lord Fraser of Tullybelton said, at page 435:
"My Lords, I do not think it would be
possible to state a test in a form which could be applied in all cases. Circumstances vary greatly. The weight of the public interest against
disclosure will vary according to the nature of the particular documents in
question: for example, it will in
general be stronger where the documents are Cabinet papers than when they are
at a lower level. The weight of the
public interest in favour of disclosure will vary even more widely, because it
depends upon the probable evidential value to the party seeking disclosure of the
particular documents, in almost infinitely variable circumstances of individual
cases. The most that can usefully be
said is that, in order to persuade the court even to inspect documents for
which public interest immunity is claimed, the party seeking disclosure ought
at least to satisfy the court that the documents are very likely to contain
material which would give substantial support to his contention on an issue
which arises in the case and that without them he might be 'deprived of the
means of ... proper presentation' of his case..."
The last words were taken from the passage in Lord
Radcliffe's speech in Glasgow Corporation
v Central Land Board quoted
above. Mr Wolffe submitted that the test
for us to apply remained as it was stated in Air Canada. While not taking
issue with this, Mr O'Neill submitted that, as could be seen from the decision
of Moore-Bick J in Goodridge v Chief Constable of Hampshire [1999] 1 WLR
1558, "things had come on" since Air
Canada, under European influence. He
referred in particular to a passage at page 1567 in which the judge said that,
on the authorities, the right approach to take was that it was for the
plaintiff in the first place to show that the document should be disclosed to
the court under the ordinary rules of discovery, and that thereafter it was for
the court to embark on the exercise of balancing the conflicting interests,
namely the need to do justice to the plaintiff and the need for proper
protection of the public interest, to determine whether the document should be
disclosed.
[19] Mr O'Neill characterised
this as a short and straightforward point.
He submitted that the court must see the documents before taking a
decision about them in performing the balancing exercise. He was clear that in the documents which he
had seen there was material that was relevant to the petitioners' cases. The process which had been followed was
flawed. On behalf of the Scottish
Ministers, and under reference to Edwards
and Lewis v United Kingdom (2005) 40 EHRR 24 at paragraph 54,
Mr Wolffe submitted that the issue was procedural. While no doubt Mr O'Neill had been placed in
a difficult position, the court was nevertheless entitled to be satisfied that
there was sufficient justification in all the circumstances that the order
sought should be made.
Discussion
[20] In our opinion
the principle to be applied remains as stated by Lord Fraser in Air Canada. Given that the issue is one of procedure, we
do not find assistance in English cases which turn on the procedure of
discovery. As we understand it, this
imposes a duty of disclosure, which may be contrasted with the Scottish
procedure, under which it is always for the party seeking recovery of documents
to satisfy the court that an order should be made. The procedure to be adopted must necessarily
depend on the state of the pleadings and other relevant circumstances in any
particular case. A special aspect of the
Scottish procedure is the appointment of a Commissioner, of a level of
seniority and experience appropriate to the subject-matter, who in a case such
as the present may be expected to dispose of all other issues before the court
is called on to decide whether passages which have been redacted pursuant to a
PII certificate should nevertheless be disclosed to the party seeking recovery
of the documents. In addition, in the
present case, the parties followed a course which we would encourage in other
suitable cases, whereby it was possible for counsel for the petitioners, in
terms of the protocol, to examine the redacted material. Thus, by the time that the issue came before
the Lord Ordinary, it should have been possible for the issue to be sharply
focused and for well-informed arguments to be presented to her. It is not in dispute that it was for the Lord
Ordinary, in the exercise of her discretion, to carry out a balancing
exercise. It is for the petitioners to
satisfy us that in so doing she misdirected herself. It was clear to her, as it is to us, that
there was a very strong public interest in non-disclosure of the redacted
material. It therefore required
sufficiently compelling reasons to counter this. While senior counsel for the petitioners was
no doubt in a difficult position by reason of the terms of the protocol which
he had agreed, it was no more difficult than many situations encountered in practice,
and we do not accept that he was inhibited from pointing to specific averments
of either party which disclosure of the redacted passages would serve to prove
or disprove and without which the petitioner in question would be deprived of
the means of proper presentation of his case.
A general comparison of parties' pleadings with the nature of the
redacted information as described by the Minister does not suggest any such
disadvantage. Mr O'Neill did not
maintain that that description was inaccurate.
Furthermore, each petitioner will, at best, be entitled to an award of
damages which, on any view, is likely to be modest. By contrast, a process of gathering
information on which the SPS necessarily depends for the maintenance of good
order in prisons and for the safety of prisoners may suffer serious
damage. Individual informers may come to
harm. This was recognised before the
Lord Ordinary and again before us. Yet
no attempt was made to direct the Lord Ordinary's attention to any averment,
proof of which depended upon or would even be advanced by disclosure of any
redacted passage. There is good reason
for a procedural requirement that the court should be satisfied at the outset
that there is sufficient justification for considering unredacted material. We are satisfied that the Lord Ordinary
reached the correct decision both in principle and in its application to the
circumstances of the present case.
[21] For these
reasons the above grounds of appeal fail.
Statutory time-bar
[22] In each of the
petitions at the instance of Henderson, Blanco and Cairns, the Scottish
Ministers contend that any claim which any of these petitioners may have to
damages in respect of alleged breaches of Convention rights must be advanced
under reference to the Human Rights Act 1998 ("the Human Rights Act"). Before the Lord Ordinary the petitioners
contended that the Scotland Act 1998 ("the Scotland Act") was the only
appropriate route for their claims. That
contention was advanced notwithstanding frequent references in their pleadings
to the Human Rights Act. The Lord
Ordinary upheld the petitioners' contention.
In the course of the reclaiming motion it became clear that, while the
petitioners contended strongly that their claims to damages lay, and could only
lie, under the Scotland Act, they were not abandoning their claims under the
Human Rights Act - which would be advanced in the (as Mr O'Neill saw it,
extraordinary) event of their primary contention being rejected. The issue of the proper legal basis for a claim
for damages in circumstances where the claimant maintains that the Scottish
Ministers have acted beyond their powers was a major element in the discussion
before us.
Rule 80(1) of the 1994 Rules
[23] Before
addressing that matter it is convenient first to deal with a related
issue. As is clear from Rule 80(1) the
power to make an order in writing that a person be removed from association
with other prisoners is conferred on the "Governor". Rule 3(1) of the 1994 Rules provides that in
certain rules including, subject to immaterial exceptions, any rule in Part 9
(in which Part Rule 80 appears) "Governor" means any of a number of officers
there specified. The Scottish Ministers
contend that the acts of the Governor (as so defined) in making an order under
Rule 80(1) are acts by him exercising statutory powers given to him qua Governor and for that reason, apart
from any wider consideration, any claim that those acts were incompatible with
the petitioners' Convention rights falls to be advanced under reference to the
Human Rights Act. The Lord Ordinary
rejected that contention.
[24] Before us the
Scottish Ministers submitted that the structure of Rule 80 supported their
contention. Reference was made to Rule
80(5) and (6), and to Rule 80(8)(a) and (b).
The powers there conferred on the Governor were to be seen in the
context of other rules, namely Rule 78(1) (which imposed on the Governor the
responsibility for the supervision of the whole prison and the control of the
prisoners confined therein) and Rule 13(2) (which empowered the Governor,
having regard to any matter affecting the management of a prisoner, to allocate
within a prison a particular part of it in which a prisoner might be
confined). These rules, so the argument
ran, clearly distinguished between powers given to the Scottish Ministers and
powers given to the "Governor". The
latter exercised the powers conferred on him by virtue of the statutory powers
given for the purposes of Rules 80(1) and (7) and not because he was a civil
servant or an official of the Scottish Ministers. While the Governor in exercising his powers
was a "public authority" for the purposes of the Human Rights Act, his act was
not an "act of a member of the Scottish Executive" for the purposes of section
57(2) of the Scotland Act. Any claim
directed against the validity of orders made under Rule 80(1) was properly
articulated under reference only to the Human Rights Act. The Lord Ordinary had erred in law in her
view that this argument was difficult for the Scottish Ministers, having regard
to their contentions (in a separate chapter) based on the Carltona doctrine (Carltona
Limited v Commissioners of Works
[1943] 2 All ER 560), and her conclusion that it would produce the result of "a
civil servant being in a stronger position as regards vires than the Minister to whom he is answerable".
[25] In our view
the Scottish Ministers' contention on this aspect of the case is unsound. By section 53(1) of the Scotland Act certain
functions are, "so far as they are exercisable within devolved competence",
exercisable by the Scottish Ministers instead of by a Minister of the
Crown. These functions include those of
the Secretary of State under the Prisons (Scotland) Act 1989. It was in furtherance of the powers conferred
by section 39(1) of that Act that the 1994 Rules were made. Amendments to the Rules, including to Rule
80, have been made by the Scottish Ministers in exercise of the functions
transferred to them. Section 3(1A) of
the Act (as inserted by paragraph 27(3) of Schedule 8 to the Scotland Act)
provides that every prison shall have a Governor and such other officers as may
be necessary. Governors and other such
officers are appointed by the Scottish Ministers. Section 39(12) of the 1989 Act provides that
rules made under that section may (without prejudice to the generality of
subsection (1)) confer functions on a Governor.
Section 54 of the Scotland Act makes provision in respect of "devolved
competence" in a manner which relates it to the scope of the legislative competence
of the Scottish Parliament. Section
29(2) of the Scotland Act provides that a provision of an Act of the Scottish
Parliament is outside the competence of that Parliament so far as any of
certain paragraphs apply. Paragraph (d)
applies if the provision is incompatible with any of the Convention rights.
[26] The cumulative
effect of these provisions is, in our view, that an appointee of the Scottish
Ministers (such as a Governor) is circumscribed by the same limit of competence
as his appointer. It matters not that
the rules made under statutory powers confer on such an appointee (and only
upon such an appointee) certain powers, including the power to make orders
under Rule 80(1). These powers must in
turn be exercised within the competence enjoyed by the appointer. Accordingly, a Governor has no power to make
a Rule 80(1) order which is incompatible with any of the Convention
rights. In the result the Governor is
thus, in making such an order, subject to the same vires control as the Scottish Ministers. If that were not so, the anomaly would arise
that, while the Scottish Ministers were personally subject to the vires control, members of the Scottish
Administration, implementing devolved functions on their behalf, would not be.
[27] By way of illustration
of that analysis the petitioners pointed out that all 12 substantive criminal
appeals brought (as at January 2006) before the Judicial Committee of the Privy
Council involved challenges to acts not of the Lord Advocate personally but of
other persons (Advocate deputes and procurators fiscal) acting as public
prosecutors. In five of these the
prosecutor (whose acts had been challenged) had been a procurator fiscal or a
procurator fiscal depute. It was clear
that such persons were office holders in the Scottish Administration - see
Scotland Act, section 126(6), (7) and (8) and the Scottish Administration
(Offices) Order 1999 (SI 1999/1127), Regulation 2. It had not been suggested in any of these
appeals that the issues to be decided were not "devolution issues" and so not
within the jurisdiction of the Judicial Committee. While, as the point had never been raised,
there was no decision on it, it would be surprising if any incompetence had not
been noticed.
[28] We are
satisfied that no specialty arises by reason of the power to make a Rule 80(1)
order being vested in the Governor.
Accordingly, for the purposes of addressing the main issue in respect of
time-bar, no distinction falls to be made between the making of an order under
that sub-rule and the authorisation of its extension or further extension under
Rule 80(5) or Rule 80(6).
The relationship of the Scotland Act to the Human Rights Act
[29] The main issue
in respect of time-bar raises an important question about the Scotland Act and
its relationship with the Human Rights Act.
Section 6 of the latter Act provides:
"(1) It
is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection
(1) does not apply to an act if -
(a) as
the result of one or more provisions of primary legislation, the
authority could not have acted
differently; or
(b) in
the case of one or more provisions of, or made under, primary
legislation which cannot be read or
given effect in a way which is compatible with the Convention rights, the
authority was acting so as to give effect to or enforce those provisions."
It is not disputed that both the Scottish Ministers and all
"Governors" who made relevant Rule 80(1) orders are public authorities within
the meaning of section 6.
[30] Section 7
provides:
"(1) A
person who claims that a public authority has acted (or proposes to act) in a
way which is made unlawful by section 6(1) may -
(a) bring
proceedings against the authority under this Act in the
appropriate court or tribunal, or
(b) rely
on the Convention right or rights concerned in any legal
proceedings,
but only if he is (or would be) a
victim of the unlawful act.
[Subsection (2) defines "appropriate
court or tribunal".]
...
(5) Proceedings
under subsection (1)(a) must be brought before the end
of -
(a) the
period of one year beginning with the date on which the act
complained of took place; or
(b) such
longer period as the court or tribunal considers equitable having
regard to all the circumstances,
but that is subject to any rule
imposing a stricter time limit in relation to the procedure in question.
...
(7) For
the purposes of this section, a person is a victim of an unlawful act only if
he would be a victim for the purposes of Article 34 of the Convention if proceedings
were brought in the European Court of Human Rights in respect of that act."
Section 8 provides:
"(1) In
relation to any act (or proposed act) of a public authority which the court
finds is (or would be) unlawful, it may grant such relief or remedy, or make
such order, within its powers as it considers just and appropriate.
...
(3) No
award of damages is to be made unless, taking account of all the circumstances
of the case, including -
(a) any
other relief or remedy granted, or order made, in relation to the act
in question (of that or any other
court), and
(b) the
consequences of any decision (of that or any other court) in respect
of that act,
the court is satisfied that the award
is necessary to afford just satisfaction to the person in whose favour it is
made.
(4) In
determining -
(a) whether
to award damages, or
(b) the
amount of an award,
the court must take into account the
principles applied by the European Court of Human Rights in relation to the
award of compensation under Article 41 of the Convention.
...
(6) In
this section -
...
'damages' means damages for an
unlawful act of a public authority;
and
'unlawful' means unlawful under
section 6(1)."
[31] The Scottish
Ministers' contention is that the petitioners' claims for damages are subject
to the provisions of the Human Rights Act, including in particular section
7(5). As in respect of certain, though
not all, of the periods of segregation complained of, the present petitions
were not brought before the end of the period of one year beginning with the
date on which the act complained of took place, then - subject to the exercise
by the court of its equitable power under section 7(5)(b) - the proceedings
are, so far as they relate to such periods of segregation, out of time. (There was no suggestion that, in respect of
petitions for judicial review in Scotland, any stricter time limit currently
applied). The petitioners' primary
contention is that the provisions of the Human Rights Act are irrelevant to
their claims for damages. These claims,
they contend, in so far as based on infringement of Convention rights, are laid
- and can only be laid - under the Scotland Act. That Act provides by section 57(2) that -
"A member of the Scottish Executive
has no power ... to do any ... act, so far as the ... act is incompatible with any of
the Convention rights ... ."
The Act makes no express provision entitling a person who
complains that his Convention rights have been infringed by the act of any
member of the Scottish Executive (or any member of the staff of the Scottish
Administration) to bring proceedings for damages, or indeed for any other
remedy. However, the petitioners
maintain that, on a sound construction of the Scotland Act, they are entitled
to claim "public law" damages for such infringement under that Act and, in so
far as concerns the Scottish Ministers or any other person constrained by the vires limitation of section 57(2), only
under that Act. In that regard they rely
upon the decision of the Privy Council in R
v HM Advocate 2003 SC (PC) 21
(which they maintain answers the issue conclusively in their favour), together
with submissions based on various provisions of the Scotland Act itself and of
other statutes enacted at or about the same time - in particular the Northern
Ireland Act 1998 ("the Northern Ireland Act") and the Government of Wales Act
1998 ("the Government of Wales Act").
[32] It will be
necessary in due course to return to these statutory provisions. It is, however, convenient at this point to
notice that section 100 of the Scotland Act provides:
"(1) This
Act does not enable a person -
(a) to
bring any proceedings in a court or tribunal on the ground that an act
is incompatible with the Convention
rights, or
(b) to
rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the
purposes of Article 34 of the Convention (within the meaning of the Human
Rights Act 1998) if proceedings in respect of the act were brought in the
European Court of Human Rights.
(2) Subsection
(1) does not apply to the Lord Advocate, the Advocate General, the Attorney
General or the Attorney General for Northern Ireland.
(3) This
Act does not enable a court or tribunal to award any damages in respect of an
act which is incompatible with any of the Convention rights which it could not
award if section 8(3) and (4) of the Human Rights Act 1998 applied.
(4) In
this section 'act' means -
(a) making
any legislation,
(b) any
other act or failure to act, if it is the act or failure of a member of
the Scottish Executive."
The contentions of the Scottish
Ministers
[33] The Scottish
Ministers do not dispute that section 57(2) of the Scotland Act imposes a vires limit on an act of a member of the
Scottish Executive and that where, as here, it is alleged that such a member has
acted incompatibly with Convention rights, there is a devolution issue to which
the procedural provisions of Schedule 6 to the Scotland Act apply (Mills v HM Advocate (No 2) 2001 SLT 1359; 2003 SC (PC) 1). They maintain, however, that the proper legal
basis for any award of damages by reason of a breach of Convention rights lies
under the Human Rights Act, which provides an explicit procedural and remedial
scheme for it. They acknowledge that
declaratory and reductive remedies may, in appropriate circumstances, be sought
and obtained against them by reference solely to the Scotland Act but maintain
that the mere fact that the act of a member of the Scottish Executive has acted
ultra vires does not on its own
provide a relevant basis for a claim to financial compensation. A claim for damages against a public
authority might be founded, it was argued, on a common law ground of liability
(such as for negligence) or on a statutory provision (such as section 8 of the
Human Rights Act) but not on an ultra vires
act alone (X v Bedfordshire County Council [1995] 2 AC 633, per Lord
Browne-Wilkinson at page 730F-H) - although the existence or absence of
statutory power might be relevant to whether or not there was a defence to a
claim in respect of an act of a public authority which was otherwise
wrongful. Views expressed in R v HM
Advocate by each of Lord Hope of Craighead and Lord Rodger of Earlsferry to
the effect that a claim for damages against the Scottish Ministers in respect
of alleged infringements of Convention rights could - and should - be
articulated under reference to the Scotland Act were obiter and mistaken. The
correct view was that articulated by Lord Reed at first instance (HM Advocate v R 2001 SLT 1366 at paragraph [40]).
The reasoning in R v HM Advocate of the majority of the
Committee (which had included Lords Hope and Rodger) had been disapproved by
the majority in Attorney General's
Reference (No 2 of 2001) [2004] 2 AC 72. It was unnecessary to postulate a
separate and free-standing claim to damages under the Scotland Act, for which
(in contrast to the position under the Human Rights Act) no procedural scheme
had been laid down. Section 100 of the
Scotland Act, on a sound construction, did not impliedly envisage such a
claim. The Lord Ordinary had erred in regarding
herself as bound by R v HM Advocate to hold that the Scotland
Act was not only the route, but the required route, to a remedy in damages for
an infringement of section 57(2). She
had further erred in her construction of section 100 of the Scotland Act and in
her view that, by reason of the interval of 15 months between the bringing into
force of the Scotland Act and the bringing into force of the Human Rights Act,
the Scottish Ministers' analysis would produce an anomalous result.
The petitioners' contentions in
outline
[34] The
petitioners' primary submission was that the ratio of R v HM Advocate, binding
on this court, was to the effect that the Scotland Act was the route, and the
only route, for all remedies (including a remedy in "just satisfaction"
damages), arising out of an act which was ultra
vires by reason of section 57(2) of the Scotland Act. The Privy Council had made it clear that the
Scotland Act was to be read as a constitutional statute which provided, within
its four corners, a complete system of rights, obligations and remedies as
regards the devolved governance of Scotland.
Section 57(2) deprived the Scottish Ministers of all power to act
incompatibly with Convention rights. A
similar position applied to legislation of the Scottish Parliament which was
beyond competence. The Scotland Act had,
against the principle that Convention-incompatible acts of the Scottish
devolved administration or legislature were ultra
vires, made distinct procedural provisions to deal with "devolution issue"
challenges. These included requirements
for intimation to the relevant law officer or officers of the jurisdiction of
the United Kingdom in which the proceedings in question were to take place
(Schedule 6, paragraphs 5, 16 and 26), for preliminary references (Schedule 6, paragraphs
7-9, 18-21 and 28-29) and for the ultimate jurisdictional supremacy of the
Judicial Committee of the Privy Council.
Provision had also been made under which a court or tribunal could
remove or limit the retrospective effect of a decision made by it that
legislation of the Scottish Parliament (or subordinate legislation made by a
member of the Scottish Executive) was ultra
vires and suspend the effect of its decision (Scotland Act, section 102). These and other features were shared with the
Northern Ireland Act and the Government of Wales Act. These provisions pointed to a constitutional
regime.
[35] It was
important to see the Scotland Act as part of a settlement which embraced the
Northern Ireland Act and the Government of Wales Act. As it was a constitutional settlement, the
approach to the interpretation of the provisions should be quite different from
that applicable to the interpretation of the provisions of ordinary
statutes. Reference was made to: Robinson v Secretary of State [2002] NI 390; Minister of Home Affairs v Fisher
[1980] AC 319; Matthew v State of Trinidad and Tobago [2004] UKPC 33, [2005] 1 AC 433; and Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151, especially per Laws LJ at paragraphs 62-3. If, as was urged, the Scotland Act was a
constitutional statute, it should be read in its own terms as a
"self-contained, self-standing, self-understood" instrument. Its interpretation should be approached
"generously". In relation to the absence
of time limits, it was important to notice the distinctive provision contained
in section 102 of the Scotland Act (and replicated in section 81 of the
Northern Ireland Act and section 110 of the Government of Wales Act) which
allowed for control by the courts over the time at which decisions should have
effect. Section 101(2) of the Scotland
Act pointed to the need for a generous interpretative approach (see also
section 83 of the Northern Ireland Act).
This provision was parallel with, but distinct from, that made by
section 3 of the Human Rights Act.
[36] There were some
features shared in the devolution statutes on the one hand and the Human Rights
Act on the other. These included that
acts (or failures to act), were reviewable on Convention grounds, that there
was the same "victim" test and that damages for infringement of Convention
rights should be assessed having regard to the "just satisfaction" test of
European jurisprudence; but the checks
and balances were quite different. The
imperative of the Human Rights Act was to preserve the sovereignty of the
Westminster Parliament; the imperative of the Scotland Act was to impose a vires control which was subject to
judicial adjudication. A Scottish
Minister (other than the Lord Advocate in his prosecutorial role), whose act
was ultra vires under section 57(2)
of the Scotland Act, as being incompatible with any of the Convention rights,
could not rely by way of defence on section 6(2) of the Human Rights Act. Where a devolution issue arose, the only
route for a person seeking a remedy was by way of the devolution statute. If litigants were in a position to pick and
choose which statute to claim under, there would be constitutional chaos. There was nothing to suggest that the Privy
Council, in the exercise of its devolution jurisprudence could not award (or
vary an award of) damages.
[37] If one
approached the Scotland Act as a constitutional document, it was clear that it
envisaged an award of damages as a remedy available under that statute. In particular, section 100 envisaged such a
remedy. Although section 100(1) was
framed negatively, it was to a positive effect - it did enable a person to bring proceedings if he was a victim. Likewise section 100(3), although framed
negatively, enabled a court to make
an award under the Scotland Act provided that such an award could be made if
section 8(3) and (4) had applied.
Section 100(2) was also in its effect positive - the law officers could bring proceedings albeit they were
not victims; they exercised a "policing" function, no such function being
conferred under the Human Rights Act.
Section 100(4)(a) envisaged a situation for which there was no parallel
in the Human Rights Act; there was a
parallel to section 100(4)(b) but the Human Rights Act provision was
different. The end result was that the
systems of remedies were parallel but distinct.
Thus a claim for damages against the Scottish Ministers framed on the
basis of the Human Rights Act would be fundamentally irrelevant - or at least
would be incompetent unless the procedural requirements pertinent to devolution
issues had been observed. That was the
effect of Mills v HM Advocate (No 2) and of R v HM
Advocate.
[38] The Scotland
Act had been in force for some 15 months prior to the Human Rights Act being
brought into force. The Westminster
Parliament must have thought that the former statute could stand alone without
the latter. The Scotland Act, which had
been enacted ten days after the Human Rights Act, could be regarded as a more
specialised statute impliedly repealing (though that was not necessary for the
argument) any more generalised provision of the Human Rights Act. Section 129(2) of the Scotland Act was a
co-ordinating provision but it pointed to no more than that the Scotland Act
and the Human Rights Act provisions ran in parallel but distinct tracks. That section had its parallels in the
Northern Ireland Act and in the Government of Wales Act.
[39] The
constitutional model for the Scotland Act was that the judges had the last
word. The protection of the present
petitioners' rights lay not in any unlawfulness under section 6(1) of the Human
Rights Act (which might be claimed to be justified under section 6(2)) but in
the absence of power in the Scottish Ministers.
In such circumstances (where the challenged act was void) the concept of
a time-bar was inappropriate; on the other hand, as what was being sought was a
public law remedy, the court had a discretion as to whether or not any award of
damages should be made. Any mischief of
delay could and should be dealt with in the exercise of that discretion.
Discussion
[40] The issue on this aspect of the
reclaiming motion is whether the time limit of one year, provided for by
section 7(5) of the Human Rights Act 1998, has effect on the claims for damages
made by certain of the petitioners in respect of alleged infringements of their
Convention rights (and in particular those under Article 8 of the Convention)
by acts of the Scottish Ministers. The
affected petitioners maintain in the first place that this issue is, so far as
the Lord Ordinary and this court are concerned, foreclosed in their favour by
the decision of the Privy Council in R v HM Advocate. Accordingly, if that is so, this court,
whatever doubts might be entertained by its members, is obliged to decide this
aspect of the reclaiming motion as the petitioners contend.
[41] In R v HM
Advocate each of Lord Hope of Craighead and Lord Rodger of Earlsferry
expressed views to the effect that the terms of section 100 of the Scotland Act
implied a power under that statute to award damages for infringement by the Scottish
Ministers of an individual's Convention rights.
Lord Rodger at paragraph [120] quoted certain observations by the
presiding judge in that case at the preliminary diet (Lord Reed) on the
question of remedies for an infringement of Convention Rights (HM Advocate v R at paragraph [40]). Lord
Reed had suggested that in relation to a claim for damages in circumstances
where there was no effective remedy under the law of delict, the Human Rights
Act might be the only basis upon which such damages could be awarded by a
court. Lord Rodger stated that he found
difficulty with some of Lord Reed's observations.
[42] The Human
Rights Act, the Scotland Act, the Northern Ireland Act and the Government of
Wales Act were all enacted within a period of four months in 1998. Each was, in our view, a constitutional
enactment, affecting in the case of the first all the constituent parts of the United Kingdom;
in the case of the last three, constituent elements of that kingdom. While the last three set up institutions and
the first did not, its essential rationale of "bringing home" the rights and
freedoms of the European Convention on Human Rights can properly be regarded as
constitutional in character. It would be
remarkable if these statutes were not to be construed on the basis that they
were closely interrelated each with the other.
They plainly are so. The
circumstance that the Scotland Act proceeds on the basis of a vires control of parliamentary and
executive action and the other statutes do not does not, in our view, justify
treating the Scotland Act as a "self-contained, self-standing, self-understood"
instrument, if by that is meant that it is to be construed without reference to
its close constitutional neighbours.
[43] Mr O'Neill
argued that the Scotland Act was to be construed in the context of the wider
constitutional settlement of which the Northern Ireland Act and the Government
of Wales Act were part. He acknowledged
that there were certain features common to these three Acts and the Human Rights
Act. These included the features (1)
that acts or omissions were reviewable on Convention grounds, (2) that the
"victim" test applied and (3) that when awarding damages the relevant court or
tribunal should have regard to the "just satisfaction" test established under
European jurisprudence. Notwithstanding
these common features and the virtually contemporaneous enactment of all four
statutes, counsel's submissions would not allow the same interrelationship
between all four as between the Human Rights Act and the other three. We are unable to accept that submission. The Human Rights Act and the Scotland Act
provide different mechanisms for the control of acts and omissions. Under the former the infringing act is
unlawful; under the latter it is void by reason of the act being ultra vires. The former approach maintains the sovereignty
of the United Kingdom Parliament; the latter renders void infringing acts of
the Scottish Parliament and of the Scottish Executive. The Northern Ireland Act and the Government
of Wales Act share certain features with the Scotland Act. All three provide for "devolution issues"
(Scotland Act, Schedule 6, paragraph 1(d);
Northern Ireland Act, Schedule 10, paragraph 1; Government of Wales Act, Schedule 8,
paragraph 1(1)); each excludes from
justiciability a devolution issue where it appears to the relevant court or
tribunal that that issue is frivolous or vexatious (Scotland Act, Schedule 6,
paragraph 2; Northern Ireland Act,
Schedule 10, paragraph 2; Government of
Wales Act, Schedule 8, paragraph 2);
each provides that the Judicial Committee of the Privy Council is the
ultimate body to which an appeal may lie and for any decision by it to be
binding in all legal proceedings, other than proceedings before the Committee
itself (Scotland Act, Schedule 6, paragraphs 10 to 13 and section 103(1),
Northern Ireland Act, Schedule 10, paragraphs 9 and 10 and section 82(1), Government
of Wales Act, Schedule 8, paragraphs 10, 11 and 32); each provides for the making of a preliminary
reference (Scotland Act, Schedule 6, Northern Ireland Act, Schedule 8,
Government of Wales Act, Schedule 10, all passim)
and each makes special provision as regards Law Officers (for example Scotland
Act, section 100(2), Northern Ireland Act, section 71(2), Government of
Wales Act, section 107(3)). Further, in
each case power is given to a relevant court or tribunal to remove or limit any
retrospective effect of certain decisions and to suspend the effect of its
decision (Scotland Act, section 102(2); Northern Ireland Act, section 81(2); Government
of Wales Act, section 110(2)) and special provision is made for interpretation
(Scotland Act, section 101; Northern Ireland Act, section 83).
[44] Certain
legislative features are shared by the Human Rights Act and the Scotland
Act. These include provision for the
review of acts or omissions on Convention grounds (Human Rights Act, section
6(6); Scotland Act, Schedule 6, paragraph
1(e), section 100(4)(b)), for the same "victim" test (Human Rights Act, section
7(1) and (7); Scotland Act, section
100(1) - see also Northern Ireland Act, section 71(1)); and for the awarding of damages on a "just
satisfaction" basis (Human Rights Act, section 8(3) and (4), Scotland Act,
section 100(3) - see also Northern Ireland Act, section 71(3)(b)).
[45] Mr O'Neill
maintained that the Northern Ireland Act and the Government of Wales Act were
part of the same constitutional settlement as the Scotland Act, notwithstanding
that the former two statutes rendered infringing acts unlawful while the
Scotland Act rendered such acts and omissions ultra vires. While the
mechanisms are different, that difference is not, in our view, so radical as to
justify a wholly different approach to the Scotland Act from that appropriate
to its neighbours. The Human Rights Act
is no less a constitutional statute than is the Scotland Act (Thoburn v Sunderland Council per Laws LJ at paragraph 62).
[46] At this point
it is appropriate to notice a particular contention advanced by Mr O'Neill; he
categorised the Scotland Act as a "lex
specialis". That statute received
the Royal Assent on 19 November 1998, ten days after the Human Rights
Act. Counsel submitted that (in so far
as might be necessary for the purposes of his argument - which he stated it was
not) the effect of this chronology was that the later statute impliedly
repealed as respects Scotland any provision of the earlier which was inconsistent
with it. It was not, however, clear what
the nature and extent of such repeal was suggested to be. By "lex
specialis" we understood counsel to denote a statute dealing with some
specific matter, in contrast to an "ordinary" statute. The Scotland Act was said to fall within the
former category while the Human Rights Act fell within the latter.
[47] We reject that
argument. Both statutes have, in our
view, the same status for present purposes, namely, that of constitutional
instruments. Neither repeals any
provision of the other. Nor is the Human
Rights Act "simply of comparative interest", as counsel maintained. It is, for the reasons which we give later,
closely interrelated with the Scotland Act.
[48] The resolution
of the present issue turns on the nature of the relationship between the
Scotland Act and the Human Rights Act, and in particular upon a construction of
section 100 of the former statute and on the relationship, if any, between that
section and section 7 of the Human Rights Act.
Mr O'Neill laid much emphasis on the constitutional nature of the
Scotland Act and the approach to construction which, he contended, was
accordingly appropriate. He relied on Minister of Home Affairs v Fisher where Lord Wilberforce, in
delivering the advice of the Privy Council, observed that the instrument there
under discussion established a constitution and that it, and its relative
antecedents, called for
"a generous interpretation avoiding
what has been called 'the austerity of tabulated legalism', suitable to give to
individuals the full measure of the fundamental rights and freedoms referred to
[in the relevant provision]" (page 328).
His Lordship, in approaching the interpretation of a
particular word ("child"), preferred a sui
generis interpretation consistent with the constitutional character of the
instrument "without necessary acceptance of all the presumptions that are
relevant to legislation of private law" (page 329). The inappropriateness of a legalistic and
over-literal interpretation of constitutional instruments has also been noticed
by the dissenting minority (comprising Lord Bingham of Cornhill, Lord Nicholls
of Birkenhead, Lord Steyn and Lord Walker of Gestingthorpe) in Matthew v Trinidad at paragraph 34. Reference in
this context was also made to Robinson v
Secretary of State, where it was
indicated that the constitution of Northern Ireland should, consistently with
the language used, be interpreted generously and purposively, bearing in mind
the values which the constitutional provisions were intended to embody (per
Lord Bingham at paragraph [11]).
[49] We have no
difficulty in accepting that the Scotland Act is a constitutional instrument
and that the principles of interpretation referred to in the authorities cited above
should be applied in construing it. As,
however, is there indicated, any interpretation must be consistent with the
language used. We return to these
principles in the context of the construction of section 100 of the Scotland
Act.
[50] There are, of
course, differences between the Human Rights Act and the Scotland Act. As already noticed, the control provided by
the former statute is one of rendering unlawful acts which infringe Convention
rights; the control provided by the
latter is by way of vires, rendering
null and void infringing acts. A further
related difference is that by section 6(2) of the Human Rights Act, subsection
(1) of that section (which renders unlawful incompatible acts of a public
authority) is disapplied where, as a result of one or more provisions of
primary legislation, the authority could not have acted differently; a similar disapplication applies to
subordinate legislation where the authority is acting so as to give effect to
or enforce primary legislation. By
contrast the existence of primary legislation having such results does not save
acts amenable to the control of the Scotland Act. This difference, however, is simply an aspect
of the different mechanisms which the United Kingdom Parliament has provided
for control under the different statutory regimes. It goes no distance to support any
proposition that the Scotland Act and the Human Rights Act are essentially
different in character in what they respectively seek to achieve.
[51] Mr O'Neill
throughout his submissions contended that proceedings under the Human Rights
Act and proceedings under the Scotland Act constituted different "routes",
albeit leading to the same result. These
routes were "parallel", although, hardly consistently with principles of geometry,
they met at a common destination, namely, the end result of the
proceedings. Where a devolution issue
arose, so ran the argument, an affected person required to travel by the
Scotland Act route; where it did not, his
or her route was that provided by the Human Rights Act. The case maintained by the Scottish Ministers
involved, counsel argued, that the choice of route depended on the remedy
sought: where a declarator or interdict
was sought, the route was by the Scotland Act, where damages were sought the
route was by the Human Rights Act, though damages could also be sought, it
seemed, under the Scotland Act. This interpretative
route led, so ran the argument, to chaos, the result being that the litigant
could pick and choose at will which route to follow. The true structure was that the Scotland Act
was a "self-contained, self-standing, self-understood instrument", uninfluenced
to any extent by the Human Rights Act.
If damages for an act or omission constituting an infringement of a Convention
right were sought by an affected person, that remedy could be obtained under
and only under that self-contained statute.
The Human Rights Act had no part to play in the construction and effect
of the Scotland Act. Thus, the
limitation provision constituted by section 7(5) of the former statute was
irrelevant to proceedings (such as the present) in which damages were sought by
a person who complained of an infringing act by the Scottish Executive.
[52] We reject that
argument. As we have sought to explain,
the Scotland Act and the Human Rights Act are each of equivalent status as
constitutional instruments. Their
proximity in time of enactment and the cross-references between them point,
with other factors, to the plain conclusion that they each (with the Northern
Ireland Act and the Government of Wales Act) form part of a single
constitutional settlement. These
statutes share many provisions. There
are also differences between and among them.
But these differences do not militate against the proposition that they
together constitute a unity. Once that
state of affairs is recognised, as in our view it must be, the question of
statutory interpretation raised by these proceedings can receive a simple and
straightforward answer.
[53] We
have already set forth the terms of section 100 (paragraph [32]). Each of subsections (1), (2) and (3) is
expressed negatively. Mr O'Neill submitted
that the negative was used for the avoidance of doubt and that each subsection
contained inferentially a positive proposition.
In particular section 100(3) could and should be read as stating:
"This Act enables the court or
tribunal to award damages in respect of an act which is incompatible with any
of the Convention rights which it could award if section 8(3) and 8(4) of the
Human Rights Act applied."
Likewise subsection (1) could and
should be read as stating:
"This Act enables a person (a) to
bring proceedings in a court ... and (b) to rely on any of the Convention rights
... if he would be a victim for the purposes of Article 34...";
and subsection (2) could and should
be read as stating in effect:
"The Lord Advocate, the Advocate
General, the Attorney General and the Attorney General for Northern Ireland can raise proceedings
notwithstanding that he or she does not meet the victim test referred to in
subsection (1)."
Counsel elaborated his argument as
follows. The test applied in the Home Office v Fisher should be applied (Montgomery v HM
Advocate 2001 SC (PC) 1 at page
18C-D). The first step to be taken by a person
aggrieved by an act or omission of the Scottish Ministers was to look at the
Scotland Act, which itself told him what to do.
That Act provided a complete scheme for the protection of the rights of
such a person, as it had done during the 15 months while it was in force but
the Human Rights Act was not. The United
Kingdom Parliament had provided that the Scotland Act should stand alone
without the Human Rights Act. In each of
Mills v HM Advocate (No 2) and R. v
HM Advocate the Advocate General had
rightly argued (and accepted) that any complaint of infringement of Convention
Rights should be raised under the Scotland Act and not the Human Rights
Act. Section 129(2) of the Scotland Act
was a co-ordinating but limited provision which ensured that the proceedings
under these Acts were separate but parallel.
That subsection stipulated that the Scotland Act provisions had full
force and effect even if the Human Rights Act was never brought into
force. The Lord Ordinary's approach to
this subsection had been sound. Section
129(2) had been introduced at a relatively late stage in the parliamentary
progress of the relative Bill.
Equivalent provisions were to be found in the Northern Ireland Act
(Schedule 14, paragraph 1) and in the Government of Wales Act (section 153(2)). Where the treatment was different that
reflected the circumstance that the United Kingdom Parliament remained
sovereign (the Executives and the Assemblies were given the defence provided by section 6(2) of the Human Rights
Act). Section 129(2) of the Scotland Act
had effect upon sections 29(1)(d), 126(1), 57(2), 57(3) and 100. Under the scheme laid down by the Scotland
Act the judges, by their adjudication upon issues of competency, had the last
word. The concept of time-bar was
inappropriate to a scheme which depended upon a competency test. Such a scheme, however, would be expected to
and here did provide for the public law remedy of damages, into which was built
a judicial discretion; that discretion might in an appropriate case deny that
remedy on the ground of excessive delay.
An attempt to import a different model (such as that provided by the
Human Rights Act) was to destroy the model provided by the Scotland Act. It would be wrong to construe section 129(2)
as incorporating into the Scotland Act the whole scheme of the Human Rights
Act. Section 100(3), soundly construed
against the interpretative canons applicable to constitutional instruments,
positively enabled this court to award such damages as it could have awarded if
the Human Rights Act had applied (which it did not). The consistency of this provision so
interpreted with section 57 was to be found in the circumstance that section
100(3) specified only subsections (3) and (4) of section 8 of the Human Rights
Act, and not section 6(2). The
equivalent provisions in the Northern Ireland Act and in the Government of
Wales Act were sections 71 and 107 respectively.
[54] We
are unable to accept this argument. We
adopt a generous and purposive approach to the exercise of construction. Adopting that approach we are satisfied that
section 129(2) is not merely of "comparative interest" but that its purpose was
to ensure that, even during any period when the Human Rights Act was not in
force, it was to be treated as if it were in force. Once in force, that statute had of itself the
force of law. Accordingly, as from the
time of the coming into force (in May 1999) of the Scotland Act, the Human
Rights Act was for the purposes of the Scotland Act to be treated as in force
(in the event until October 2000) and thereafter was for all purposes in
force. That points in our view not only
to a close interrelationship between the Scotland Act and the Human Rights Act
but also to an intention of Parliament that, as from the coming into force of
the Scotland Act, it should be read and construed consistently with the Human
Rights Act. It points, in our view, to a
close dependency of the former statute on the latter. The notion that the Scotland Act is to be
read as a "self contained, self-standing, self-understood" instrument is wholly
inconsistent with the generous and purposive canon of construction upon which
Mr O'Neill (rightly) relied.
[55] It
is then necessary to address section 100.
It is not suggested that there is any provision of the Human Rights Act
which is inconsistent with that section.
In particular, it is not suggested that section 7(5) of the Human Rights
Act is inconsistent with it. It plainly
is not. Accordingly, if the two statutes
are, as we hold, to be regarded as closely interdependent, it is right and proper
to conclude that Parliament, in the absence of some compelling reason to the
contrary, intended that section 7(5) should apply to limit in terms of time
proceedings where a devolution issue arose as well as those where none arose. We use the phrase "where a devolution arose" advisedly
because we regard it as a misconception to speak of proceedings "under the
Scotland Act". There are no such
proceedings in relation to claims for damages.
Proceedings, whether by summons or petition, may give rise to a devolution
issue which may in turn require certain procedural steps, such as intimation to
the Advocate General for Scotland, to be taken; but that does not mean
that the proceedings themselves are taken "under" the Scotland Act.
[56] Section
100, properly construed, clearly has a purpose.
Its purpose is to ensure that in proceedings in which a devolution issue
is raised (1) the victim test is generally applied to the issue of title and
interest to sue, (2) the Law Officers do not require to satisfy the victim test
and (3) that, in proceedings in which damages are awarded, the fact that the
act in question is ultra vires by
reason of section 57(2) does not avoid the requirement that the court or
tribunal apply to its assessment the just satisfaction test of European
jurisprudence. The purpose of section
100 is, in our view, plain and that purpose is not, with respect to the members
of the Judicial Committee who took a contrary view, the purpose favoured by
them.
[57] The
Lord Ordinary took the view that she was bound by the decision of the Privy
Council in R v HM Advocate to reach the decision which she did. In our view she was mistaken in that
matter. As however we also are bound,
whatever our personal views, by the ratio of any decision of the Privy Council,
we must first endeavour to identify that ratio.
[58] In
R v HM Advocate the accused was charged in the High Court with indecent
behaviour against children. Prior to his
trial he lodged in respect of two of these charges a plea in bar of trial. His basic contention was that proceedings in
respect of these two charges had not been brought within a reasonable
time. Parties were heard by the trial
judge (Lord Reed), who repelled the plea in bar of trial but granted leave to
appeal. He also granted leave to the
accused to amend the minute to include a submission in terms of section 57(2)
of the Scotland Act. The appellant
appealed to the High Court of Justiciary.
The court refused the appeal but granted leave to the accused to appeal
to the Privy Council. The appellant
appealed to the Judicial Committee of the Privy Council.
[59] The
Committee by a majority allowed the appeal, Lord Steyn and Lord Walker of
Gestingthorpe dissenting. By this stage
the appellant had confined his contention to the proposition that the act of
the Lord Advocate, in pursuing a prosecution of the two charges, was ultra vires under the Scotland Act and
that accordingly he should be prohibited from continuing the prosecution of
these charges. The Committee decided
that the Lord Advocate was indeed acting ultra
vires. An issue then arose as to the
accused's remedy. Lords Hope of Craighead,
Clyde and Rodger of Earlsferry held that
the appropriate remedy was to allow the appeal by sustaining the plea in bar
and dismissing the charges from the indictment.
The minority (Lords Steyn and Walker) were of the view that, while there
had been a breach of the reasonable time guarantee under Article 6 of the
Convention, the appellant's remedy lay not in dismissal of the charges but in
the circumstance being brought into account on consideration of any penalty to
be imposed in the event of the appellant being convicted on the charges.
[60] In
the joint statement of facts and issues provided to the Judicial Committee,
four issues were identified. The first
two of these were in the following terms:-
"1. Whether
the continuation of this prosecution by the Lord Advocate on charges (1) and
(3) after a reasonable time has elapsed constitutes a violation of article
6(1).
2. Whether,
in view of section 57(2) of the Scotland Act 1998, the Lord Advocate still has
power to prosecute the appellant on charges (1) and (3) after a reasonable time
has elapsed."
The third stated issue was held not
to raise a devolution issue and thus to be outwith the jurisdiction of the Committee. The fourth issue (namely, whether the act of
the Lord Advocate in continuing to prosecute the appellant after a reasonable
time had elapsed constituted an "act" within the meaning of section 57(2) of
the Scotland Act) is not germane to the questions arising for decision in the
present case.
[61] Lord
Hope, after dealing with the fourth issue, concentrated first on the second,
which raised the question of remedy. He
did so in order to demonstrate that the effect of section 57(2) was that,
"once it has been established that a proposed or continuing act is
incompatible with a person's Article (6) Convention right, the Lord Advocate is
prohibited from doing the act by the
statute." (Emphasis in original)
He continued -
"The only course which the court can
take is to order him not to do it and bring the proceedings to an end." (Paragraph [53])
Having referred to a statement in Mills v HM Advocate at paragraph 51 that it was important to start with the
position of domestic law, Lord Hope continued:
"The proper approach is first to
identify the remedy which would ordinarily be thought to be appropriate in
domestic law for a breach of the kind that has taken place, and then to
consider whether the remedy which has thus been identified would achieve just
satisfaction for the breach as indicated by the jurisprudence of the European
court."
At paragraph [60] he developed that
approach as follows:
"Section 8 of the Human Rights Act
1998 gives power to a court to grant such relief or remedy for a breach of a
person's Convention rights as it considers appropriate. There is no equivalent provision in the
Scotland Act 1998, so the power of the court to grant relief or to provide a
remedy is left to common law principles.
One of these is the familiar principle which provides a civil cause of
action where there has been a breach of a statutory duty which results in
injury to a person of a class which the statute was designed to protect: see Solomons
v R. Gertzenstein Limited [1954] 2 QB
243. In the present context it may be
sufficient to point to the fact that the Scotland Act itself envisages that the
person who would be a victim for the purposes of article 34 of the Convention
if proceedings in respect of the Act were brought in the European Court of
Human Rights is entitled to a remedy:
see section 100(1). A power to
award damages is clearly implied by section 100(3), as it prevents a court or
tribunal from awarding any damages in respect of an act which is incompatible
with any of the Convention rights which it could not award under section 8(3)
and (4) of the Human Rights Act which requires the court to apply the
principles which the European Court should apply. As Clayton and Tomlinson, The Law of Human Rights, page 1416, paragraph
21.13 explain, the award of damages in these circumstances is regarded as a
public law remedy."
[62] He
observed that there was no reason to think that the position was different in
criminal cases. He added that the
ordinary remedy which our domestic law provided where the unlawful act was in
prospect or was still continuing was to pronounce an order whose effect would
be to prevent that act from taking place or to bring it to an end. Having referred to the dictum of Hardie Boys J
in the New Zealand Court of Appeal ("the right is to trial without undue delay;
it is not a right not to be tried after undue delay"), he expressed the opinion
that it would be wrong to regard that dictum as a guide to the consequences in
Scotland of a finding that the Lord Advocate's proposed act was in breach of
the Convention right (paragraph [66]).
Having then addressed the question of incompatibility (which he
described as the "crucial question in this case"), he held that on his analysis
and on the agreed facts a finding that the Lord Advocate's act in continuing to
prosecute the appellant on those charges was incompatible with the right to the
determination of those charges in a reasonable time seemed to him to be
inevitable (paragraph [79]). In drawing
that section to a close Lord Hope observed that all that needed to be said
"with great emphasis" about Attorney-General's
Reference (No 2 of 2001) [2001] 1 WLR 1869 was that the decision (in the
Court of Appeal) in that case proceeded "upon the assumption that under the
Human Rights Act there is a choice of remedies" (paragraph [83]). For these reasons and for the reasons given
by Lord Rodger "with whose carefully reasoned judgment I am in full agreement"
Lord Hope stated that he would allow the appeal (paragraph [84]).
[63] Lord
Clyde observed that the critical question was one of construction of section
57(2) of the Scotland Act (paragraph [86]).
He noted that the consequence of members of the Scottish Executive doing
an act which was incompatible with Convention rights or with Community law was
that that act, being ultra vires, was
necessarily void and of no effect. He
added that section 57(2) did not detail what remedy, if any, beyond that
invalidity there might be where someone had suffered because a member of the
Scottish Executive had acted beyond his or her power but that it did render
ineffectual any act incompatible with Convention rights or with Community
law. Having concluded that the continued
prosecution of the appellant was incompatible with his Convention right Lord
Clyde observed that one then looked to the domestic law to find the
consequence. Section 57(2), he said,
gave a fair answer in providing that the Lord Advocate had no power to
prosecute after an unreasonable delay and that the prosecution must then be
dismissed. For these reasons he also was
of opinion that the appeal should be allowed.
[64] Lord
Rodger, having referred to section 6(1) of the Human Rights Act and section
57(2) of the Scotland Act, noted that the Lord Advocate was a "public
authority" for the purposes of the former provision. It followed, he said, that in so far as an
act was indeed incompatible with a parties' Convention right any of the
provisions of the Human Rights Act and the Scotland Act that might be
applicable might be engaged. He added:
"Therefore, an accused person cannot
conduct proceedings on the basis that he wants the court to consider the
question of incompatibility of an act of the Lord Advocate only in terms of
section 6(1) of the Human Rights Act.
That would be to ask the court to fail to apply the law that Parliament
has enacted in the Scotland Act for such cases of incompatibility. What must be ascertained in any given case is
the actual legal position: that is
determined by applying the relevant legislation enacted by Parliament, not by
applying merely those parts of the relevant legislation which a particular
party may have chosen to rely on. It is
for this reason that, as the High Court held in Mills v HM Advocate (No 2)
(2001), the question of the incompatibility of any act of the Lord Advocate
with Convention rights is necessarily a question under the Scotland Act and one
which constitutes a devolution issue for the purposes of schedule 6."
(Paragraph [118])
Turning to remedies under the
Scotland Act Lord Rodger referred to the earlier proceedings in the case. He said:
"In his thought-provoking opinion in this
case, however, the presiding judge at the preliminary diet (Lord Reed) gave two
examples of acts of members of the Scottish Executive that would be incompatible
with Convention rights: the ill-treatment
of a prisoner in violation of article 3 and the reading of the prisoner's
correspondence in violation of article 8 (HM
Advocate v R. (2001) at page
1377H, paragraph 40).
He [Lord Reed] then added:
'In such a case, section 57(2) would
appear to have the consequence that the act in question cannot be treated as
being within the lawful powers of the person who committed it, and so prevents
the possible justification or defence from being put forward. It does not however in itself enable any
effective remedy to be granted by the court in a case of that kind'.
I would respectfully agree that the
purpose of section 57(2) is to prescribe the consequences in law if the members
of the Scottish Executive do an act that is incompatible with Convention
rights. The presiding judge went on to
observe at page 1377I-K:
'Where the act can be treated as
delictual under the ordinary law of delict (e.g. an assault on a prisoner),
then the court can provide an effective remedy under the law of delict, for
example in the form of damages. Where
the act is not delictual under the ordinary law, then section 57(2) does not
confer upon the court a power to award damages.
The Human Rights Act may however enable such damages to be awarded, since
the conduct is also an unlawful act within the scope of section 6(1) of that
Act, and section 8 empowers the court to grant a wide range of remedies, which
may include damages, in respect of such an act.
In other words, section 57(2) of the Scotland Act only addresses the
issue whether the act in question falls within the powers of the Scottish
Executive; and there may be circumstances in which a violation of the
Convention has occurred, as a result of an act which falls within the scope of
section 57(2), but in which the only effective remedy may lie under sections 7
to 9 of the Human Rights Act.'" (Paragraph
[120])
Lord Rodger stated that he had more
difficulty with some of those observations.
He added that sections 29(2)(d) and 57(2) were provisions of cardinal
importance in the overall constitutional structure created by the Act. He referred to Simpson v Attorney General
(Baigent's case) [1994] 3 NZLR 667 and the authorities cited there by the
New Zealand Court of Appeal. He
continued:
"Like Lord Hope of Craighead,
however, I find in section 100 of the Scotland Act the clear implication that
the Act does indeed itself enable people to bring proceedings and to defend
themselves where legislation or acts are incompatible with Convention
rights. The power to do so can be seen
from the restrictions that Parliament has placed on it. Section 100 provides:
[His Lordship then set out the terms
of section 100 and continued:]
"The section is designed to limit the
situations in which a party can invoke Convention rights in litigation. So no one can bring proceedings or rely on
his Convention rights unless he would be a victim for the purposes of article
34 of the Convention if proceedings were brought in the European Court of Human
Rights ("the European court"). The
implication must be that "this Act" does
enable a person to do both these things if he would qualify as a victim in
European court proceedings. The fact
that the Scotland Act itself is the source of this power is confirmed by
subsection (3). It is concerned to say
that the Act does not enable a court or tribunal to award any damages which it
could not award if section 8(3) and (4) of the Human Rights Act applied. Again, the implication must be that the
Scotland Act does enable a court or
tribunal to award the damages that it could award if section 8(3) and (4) of
the Human Rights Act applied. Moreover,
subsection (3) shows that the court or tribunal is not awarding damages under
section 8 of the Human Rights Act: the
Scotland Act itself enables the court or tribunal to award the same damages as
it could award if it were awarding
them under section 8 of the Human Rights Act.
The remedy of damages is the only one that is specifically mentioned -
and then only because of the special restrictions placed on it." (Paragraph
[122])
[65] In
the following paragraph he noted that section 100 had a counterpart in section
7 of the Human Rights Act and expressed the view that, especially in the light
of that provision, he would infer from section 100(1) of the Scotland Act that
the Act itself enabled a person, who claimed that an act or a proposed act of a
member of the Scottish Executive was incompatible with his Convention rights,
to bring proceedings in a court or tribunal or to rely on his Convention rights
in any proceedings in a court or tribunal.
Convention rights, and the remedies for vindicating them belonged, he
added, in the sphere of public, rather than private, law. At this point he referred to Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 and Baigent's case. He concluded this discussion by saying that
the Scotland Act itself would enable a prisoner who had been ill-treated in
contravention of article 3 to sue the Scottish Ministers for damages. Similarly, the Scotland Act would provide the
basis for the prisoner to obtain appropriate redress from Scottish Ministers
for the reading, or threatened reading, of his correspondence in violation of article
8 (par. [123]).
[66] In
paragraph [126] Lord Rodger noted that, if only the Human Rights Act applied,
then the result of any finding of incompatibility would be that the Lord
Advocate's "act" would be unlawful.
There would be an act of the Lord Advocate but an unlawful act. He continued:
"But the Lord Advocate is not simply
a public authority to whom section 6(1) of the Human Rights Act applies; he is
also a member of the Scottish Executive to whom, in addition, section 57(2) of
the Scotland Act applies. And subsection
(2) goes further than section 6(1) of the Human Rights Act. By virtue of subsection (2) the Lord Advocate
actually has no power to do an act so far as is incompatible with any of the
appellant's Convention rights. To that
extent any such 'act' by the Lord Advocate is invalid: it is not truly an 'act' at all but merely a
'purported' act."
[67] Lord
Rodger noted that in the appeal before the Board the appellant was not invoking
any remedy given to him by the Convention itself or any remedy given to him by
the Human Rights Act. Rather, relying under
the Scotland Act on his Convention right, he was saying that the Lord
Advocate's act in continuing to prosecute him on charges (1) and (3) was
incompatible with the Convention and that, by reason of section 57(2), the act
was invalid, a nullity. That was the correct
basis for his challenge. Addressing the
expression "incompatible" in section 57(2), Lord Rodger observed that:-
"Parliament chose to use the Scotland
Act as the vehicle for bringing Convention rights to bear on the devolved
institutions: Rights Brought Home, paragraph 2.21." (Paragraph [141])
He finally addressed the question of
remedy under section 57(2). Having
referred to the legislative position in other jurisdictions and to the
interpretation of such legislation by the local courts, Lord Rodger concluded
that the effect of the legislation applicable to Scotland was that the Lord Advocate had no
power to continue the prosecution on the charges complained of (paragraph
[155]). He stated that for the reasons
given by him, as well as for the reasons given by Lord Hope with which he
agreed, he would allow the appeal.
[68] Lord
Steyn described the central point in the case as being whether, under section
57(2) of the Scotland Act, a breach of the reasonable time guarantee under article
6.1 of the Convention automatically rendered a continuation of the prosecution
incompatible with the rights of the accused (paragraph [7]). He held that it did not. There was no automatic remedy (paragraph
[11]). In his view a breach of the
reasonable time guarantee, in a situation in which a fair trial was still
possible, did not by itself (Lord
Steyn's emphasis) trigger a right not to be prosecuted. He quoted with approval Hardie Boys J's
dictum in Martin v Tauranga District Court. He expressed the view that Lord Reed at first
instance in R v HM Advocate had rightly invoked that dictum. That view, he said, was also consistent with
the observation of Lord Millet in Dyer v
Watson 2002 UKPC D 1; 2002 SC (PC) 89. While not endorsing everything said in the
judgments under appeal (HM Advocate v
R 2002 SLT 834) the emphasis in them
on the fact that a breach of a reasonable time guarantee did not invariably
result in a stay or dismissal of the proceedings was consistent, in his view,
with the interpretation which he had put forward (paragraph [14]). He would have dismissed the appeal.
[69] Lord
Walker agreed with Lord Steyn. He
differed from Lord Hope and Lord Rodger as to whether the facts of the case
disclosed what could properly be called a continuing breach (paragraph
[163]). He described the decision of the
Court of Appeal of New Zealand in Martin v Tauranga District
Court as containing an illuminating discussion of the problem as it arose
in the equivalent domestic law. He would
have dismissed the appeal.
[70] Mr
O'Neill submitted that the analysis advanced by Lord Hope at paragraph [45] had
been concurred in by Lord Steyn, that this was, or was part of, the ratio of
the decision of the Judicial Committee and that that ratio was determinative of
the present case. Accordingly, counsel
argued, the Lord Ordinary had correctly held that she was bound by R. v HM
Advocate and that this court was likewise so bound. He invited us, if we were in any doubt on the
matter, to make a reference to the Committee under paragraph 10 of Schedule 6
to the Scotland Act.
[71] We
decline to make such a reference. We are
also satisfied that the ratio of the decision of the Judicial Committee in R v HM
Advocate is not determinative of the issue for decision in the present
proceedings. It may be (though we
express no opinion on the matter) that the members of the Committee were at one
in the views expressed by Lord Hope at paragraph [45]. But that is nothing to the point as regards
the present proceedings. At paragraph
[45] Lord Hope was discussing what constituted an "act" of the Lord
Advocate. Subject to the issue earlier
discussed in respect to a Governor, it is not disputed that in this case the
material acts were acts of the Scottish Ministers. The true ratio of R. v HM Advocate
concerned the nature of the remedy available to the appellant in circumstances
where the Lord Advocate, as prosecutor, was threatening to infringe the
appellant's Convention right. The
majority held that the appellant was entitled to require the court to dismiss
the two charges, the minority that his remedy lay in the fact of delay being
brought into account when any question of penalty fell to be considered.
[72] It
follows in our view that the opinions expressed by Lord Hope and Lord Rodger as
to the basis on which a remedy in damages lay were obiter. As however they were
enunciated by judges of great distinction it is incumbent on us to explain why
it is that respectfully we are unable to share their views.
[73] Lord
Hope expressed the view that the proceedings before the Committee were a case
which "has been brought under the Scotland Act and not the Human Rights Act" (paragraph
[83]) and that the appellant's challenge "must be brought under the Scotland
Act" (paragraph [50]). At paragraph [60]
Lord Hope noted that section 8 of the Human Rights Act gave power to a court to
grant such relief or remedy for a breach of a person's Convention rights as it
considered appropriate and that there was no equivalent provision in the
Scotland Act. The power of the court to
grant relief or provide a remedy was accordingly left to common law
principles. One of them, he noticed, was
the familiar principle which provided a civil cause of action where there had
been a breach of his statutory duty which resulted in injury to a person of a
class which the statute was designed to protect. He also expressed the view that section
100(3) of the Scotland Act implied a power to award damages. As Lord Rodger would have allowed the appeal
for the reasons given by Lord Hope as well as for his own reasons, he must be
taken to have concurred in the views summarised above. Lord Rodger, in a part of his speech devoted
to section 6(1) of the Human Rights Act and section 57(2) of the Scotland Act,
stated that what must be ascertained in any given case was the actual legal
position that is determined by applying the relevant legislation enacted by
Parliament, not by applying merely those parts of the relevant legislation
which a particular party might have chosen to rely on (paragraph [118]). In the following paragraph he posed the
questions "But is this a case where both section 6(1) and section 57(2)
apply? Or does one rather than the other
apply and, if so, which?" To answer
these questions, he said "It is necessary to examine how the Scotland Act
works". It is doubtful whether his
Lordship answered the questions he posed.
For in the next section, having made the observations quoted in paragraph
[64] supra, he concluded that the
Scotland Act itself enabled the claimant to bring proceedings. While it may not have been necessary for the
purposes of the case under discussion, his Lordship nowhere, it seems, examines
the question, which is crucial to the issue in this case, of the interrelationship,
if any, between the provisions of the Scotland Act and those of the Human
Rights Act. For that reason, if for no
other, his observations are of limited assistance for the purposes of this
case.
[74] It
is useful at this stage to examine Baigent's
case to which Lord Rodger makes reference.
The instrument there under discussion was the New Zealand Bill of Rights
Act 1990. The home of a Mrs Baigent and
her son was at 16 London Road, Korokoro. Police officers, proceeding either on
mistaken information or on a misunderstanding of information obtained from the
local energy board, obtained a search warrant for that property and proceeded
to enforce it. By the time the relevant
proceedings reached the Court of Appeal Mrs Baigent had died but the action was
continued by her executor and by her son.
A number of causes of action were advanced. Only one of these, alleged breach of the New
Zealand Bill of Rights Act, is relevant for present purposes. Cooke P. opened his discussion of this matter
by observing that in previous Bill of Rights cases he had tried to emphasise
the importance of a straightforward and generous approach to the provisions of
the Act. He noted that, although the New
Zealand Act contained no express provision about remedies, this was probably
not of much consequence and that "the rights and freedoms [in the relevant
Part] have been affirmed as part of the fabric of New Zealand law". He added:
"Hitherto the main remedy granted for
breaches of the rights and freedoms has been the exclusion of evidence. But that has been because most of the cases
have concerned evidence obtained unlawfully;
exclusion has been the most effective redress and ample to do
justice. In other jurisdictions
compensation is a standard remedy for Human Rights violations. There is no reason for New Zealand jurisprudence to lag behind." (Page
676)
The Crown, in resisting the
claimants' contention, relied on the absence of a remedies clause in the Act;
but the court held that in principle there was no valid distinction between
constitutions containing an express remedies clause and those without such
express provision once it was held (as it was) that effective remedies were to
be available under the New Zealand Act for violation of affirmed rights. The claimants, it was held, were entitled to
"public law compensation" and the court made an award accordingly. Casey J (page 691) noted that the Act
contained no express provision for endorsement or vindication of the rights and
freedoms it contained. It applied only
to acts done by the legislative, executive or judicial branches of Government,
or by persons performing public functions, powers or duties (section 3). This focus on public responsibilities
suggested that appropriate remedies for the breach could also be in the public
law sphere, reflecting the State's (i.e. New Zealand's) undertaking in art. 3 to ensure
that any person whose rights or freedoms were violated should have an effective
remedy. He was also of opinion that it
would be wrong to conclude that Parliament did not intend there to be any remedy
for those whose rights had been infringed (page 691). Hardie Boys J, having examined a number of
cases from other jurisdictions, observed (page 702) that the New Zealand
Bill of Rights Act, unless it was to be no more than an empty statement, was a commitment
by the Crown that those who in the three branches of Government exercised its
functions, powers and duties would observe the rights that the Bill affirmed. It was, he considered, implicit in that
commitment, indeed essential to its worth, that the courts were not only to
observe the Bill in the discharge of their own duties but were able to grant
appropriate and effective remedies where rights had been infringed. Gault J and Mackay J each delivered
concurring judgments.
[75] The
essential relevant question in Baigent's case
was whether the New Zealand Bill of Rights Act 1990, which made no express
provision for public law compensation, was to be construed as implicitly
allowing for such a remedy where a public law remedy was not otherwise available. There is no dispute but that the petitioners
are, if they establish a relevant breach of their Convention rights, entitled
in principle to a remedy in "public law" damages. That remedy is expressly provided by the
Human Rights Act, a statute of the like constitutional status as the Scotland
Act and passed almost contemporaneously with it. The former statute provides, however, that a
claim for damages must be brought within a specified time. For the reasons we have already given it is
so limited.
[76] Reverting
to the reasoning of Lord Hope and Lord Rodger in R v HM Advocate we note
that Lord Hope at paragraph [60] mentions the familiar principle that a civil
cause of action arises where breach of a statutory duty results in injury to a
person of a class which the statute was designed to protect. It is not clear to what extent Lord Hope
relied upon that principle. In any event
there is no need to do so where Parliament has otherwise provided a
remedy. Lord Hope's principal reason for
holding that the remedy arises under the Scotland Act is his construction of
section 100. For the reasons we have
already given that construction is, in our view, mistaken. For the same reason Lord Rodger's
construction of that section is erroneous.
As we have sought to demonstrate, there is no need (and it is
consequentially illegitimate) to imply a right to public law damages under the
Scotland Act where the essentially contemporaneous Human Rights Act provides
such a remedy. In Baigent's case by contrast there was no contemporaneous statute of
equivalent status (such as the Human Rights Act) which provided expressly for
both right and remedy.
[77] Before
us there was also some discussion of Attorney
General's Reference (No 2 of 2001) in the House of Lords ([2003] UKHL 68; [2004] 2 AC 72) but we find it unnecessary to discuss that decision in this
already over-lengthy opinion.
[78] Passing
reference was also made by Mr O'Neill to section 11 of the Human Rights Act
which provides:
"A person's reliance on a Convention
right does not restrict -
...
(b) his
right to make any claim or bring any proceedings which he could
make or bring apart from sections 7
to 9."
But that provision does not assist
the petitioners unless a right to public law damages arises under the Scotland
Act (as in our view it does not). Counsel
also submitted that a limitation of time provision could not be relied on where
the act complained of was null.
Reference was made to Penman v
Fife Coal Company 1935 SC (HL)
39. But that principle does not assist
the claimants here. While the act
complained of, if established, was null, it was also unlawful. It is its unlawfulness which confers a remedy
of damages. That remedy is properly
circumscribed by the limitation provision.
[79] The
Lord Ordinary took the view that she was bound by the ratio of R v HM
Advocate. In our view, for the
reasons stated above, she was in that matter mistaken. She also (at paragraph [57]) of her Opinion,
addressed the question
"whether, in the event that a claim
for damages can properly be advanced against the respondents under the Scotland
Act, the time-bar provisions of the Human Rights Act have been imported into
section 100."
She was not persuaded that they
had. There is, in our view, no question
of the time-bar provisions of the Human Rights having been "imported" into
section 100. One is not concerned purely
with a construction of that section. The
view that we have come to turns on the interrelationship, as we see it, of the
Human Rights Act and the Scotland Act, both being constitutional instruments
enacted virtually contemporaneously.
They accordingly require to be read together. The approach adopted by Lords Hope and Rodger
in R v HM Advocate to the basis for a claim for damages, if adopted here,
would fail to do that.
[80] Our
decision on this aspect of the case may be summarised as follows. The fundamental flaw in the petitioners'
approach is that they insist that proceedings in respect of an act which is
incompatible with Convention rights must be made either under the Human Rights
Act (to the exclusion of the Scotland Act) or under the Scotland Act (to the
exclusion of the Human Rights Act). The
true position is that the Human Rights Act and the Scotland Act are both on the
statute book, and a decision must be made, not as to which of them is
applicable to a given claim, but rather as to whether there are provisions made
by one or other or both of them which are applicable to a particular
claim. An act of the Scottish Ministers
which is incompatible with the Convention rights of an individual is
simultaneously (1) ultra vires of the
Scottish Ministers by virtue of section 57(2) of the Scotland Act and (2) an
unlawful act by virtue of section 6 of the Human Rights Act. To allege that a particular act of the
Scottish Ministers is incompatible with a claimant's Convention rights
inevitably raises the question of validity under section 57(2), and therefore
inevitably raises a devolution issue. It
follows that the procedure laid down for devolution issues must be followed in
any case raising such an issue. But it
does not follow that the entirety of the claimant's remedies must be sought
under the Scotland Act. So to hold
involves ignoring the fact that the Convention-incompatible act is also, for
that reason, unlawful under section 6 of the Human Rights Act. It also involves ignoring the remedies which
the Human Rights Act provides for such unlawful acts. There is nothing unacceptable about the same
act being both (1) ultra vires in
terms of section 57(2) of the Scotland Act and (2) unlawful under section 6 of
the Human Rights Act. There is nothing
unacceptable about a claimant seeking to raise proceedings under section 7 of
the Human Rights Act, and seeking the remedies, including just satisfaction
damages, provided for in section 8, provided at the same time he also follows
the procedural requirements applicable to a devolution issue. On that view, there is no need to look for a
basis for a claim for damages in the Scotland Act. Section 100 can be given its natural negative
meaning, rather than be distorted into an implied positive assertion of a right
to claim damages. Its purpose is the
limited one of making clear, ob majorem
cautelam, that the Scotland Act cannot be used as a way of getting round the
Human Rights Act requirements (1) that claimants should demonstrate victim
status (subsection (1)), and (2) that damages be confined to just satisfaction
(subsection (3)). In so far as Lords
Hope and Rodger suggested that, where there is a devolution issue, damages fall
to be claimed under the Scotland Act rather than the Human Rights Act, their
observations were obiter, and
erroneous. An ultra vires act does not per
se give rise to a claim for damages.
It may remove a defence to a common law claim for damages in delict or
the like, which would have been available if the act had been intra vires. The proper basis for a claim for damages for
an act in breach of Convention rights is, however, that such an act is unlawful
and that a claim for damages (limited to just satisfaction) is made available
under section 8 of the Human Rights Act.
It follows that such a claim is properly subject to the time-bar imposed
by section 7(5) of the Human Rights Act.
The running of time
[81] Section 7(5)
of the Human Rights Act provides that proceedings "must be brought before the
end of -
(a) the period of one year beginning with
the date on which the act complained of took place; or
(b) such longer period as the court or
tribunal considers equitable having regard to all the circumstances ....."
In the case of the petitioner
Henderson, the first four periods of segregation had both commenced and expired
more than one year prior to the service of this petition. The fifth period commenced more than one
year prior but expired within that period.
The application of section 7(5) to that period accordingly depends
on when time is treated as having begun to run and when proceedings were
brought. Henderson's sixth and subsequent periods of
segregation both commenced and concluded within the one year period. No explanation is tendered for the relevant
delays.
[82] The
Scottish Ministers contended that time began to run against the petitioner from
the commencement of any period of segregation and was interrupted only by the
service of a petition in which such segregation was complained of. On that argument, part of Henderson's fifth period of segregation would
be time-barred. Counsel for Henderson contended that, in respect of any
period of segregation, time began to run only upon the expiry of any such
period. On that argument no part of Henderson's fifth period of segregation was time-barred.
[83] There
is authority for the proposition that time is interrupted on the service of a
relevant petition (Canada Trust v Stolzenberg (No 2)) [2000] 3 WLR 1376, per Lord Hope of Craighead at page 1397; Alston v Macdougall
(1887) 15R 78). (In some circumstances
the material date may be where the first order on a petition is granted (Secretary of State for Trade and Industry v
Normand 1994 SLT 1249) but the distinction is not important for present
purposes). The Scottish Ministers argued
that that proposition applied to the present circumstances; Mr O'Neill did not
concede that service of the petition interrupted the running of time but
presented no positive argument in support of that position.
[84] The
Human Rights Act (in contrast to other statutory provisions in respect of
limitation or prescription - e.g. the Prescription and Limitation (Scotland) Act 1973) makes no express provision
in respect of when time begins to run.
The Scottish Ministers' argument focused upon the date of the decision
complained of, that of Mr O'Neill on the expiry of the period from which that
decision had an adverse effect. Mr
Wolffe drew our attention to the rule in European jurisprudence that
applications to the Court of Human Rights must be made within six months of the
date when the final decision in domestic proceedings was taken, which had been
interpreted as not applicable to a continuing state of affairs (De Becker v Belgium No 214/56, 2 YB 214, 230-234 (1958)). European authority had also addressed the
issue of the effect on a continuing status of detention when the Convention had
come into force in a country in the course of such a period. On that basis the Scottish Ministers accepted
that, and so far as concerned a single continuous period of segregation, it
would not be appropriate to exclude from probation averments about that period
which occurred earlier than the one year period but submitted that such an
earlier period would be relevant only for the purposes of determining (a)
whether or not the events or circumstances which did occur within the one year
period involved a breach of Convention rights and (b) remedy.
[85] Mr
O'Neill submitted that the Human Rights Act as a constitutional statute should
be interpreted generously and that, so interpreted, time began to run only at
the expiry of any period of segregation.
If the Scottish Ministers' argument was correct, an aggrieved party, it
was argued, might be barred from bringing proceedings even before he knew that
a breach of his Convention rights had occurred.
[86] In
the absence of any argument to the contrary and of the citation of other
relevant authority we are satisfied that proceedings were interrupted only upon
the service of the relevant petition.
As to the date from which time begins to run, we are of opinion that the
relevant consideration is, in the circumstances, not only the decision
complained of but also the practical effect of that decision on the
complainer. Accordingly time began to
run only on the expiry of the relevant period of segregation. This is in accordance with a generous interpretation
of the Human Rights Act as a constitutional statute. It also appears to be consistent with
pertinent European jurisprudence.
[87] We
accordingly hold that in the case of Henderson his fifth and subsequent periods of
segregation are not time-barred.
[88] In
the cases of each of Blanco and Cairns we note that certain of their
earlier detentions may be struck at by the operation of time-bar. We were not, however, invited to make for
this reason any exclusion in either of their cases, and accordingly do not do
so.
Disposal of the statutory time-bar issue
[89] In
the event we shall, in respect of this chapter, recall the Lord Ordinary's
interlocutor in the petition at the instance of Henderson in so far as she
repelled the Scottish Ministers' first plea-in-law, sustain said plea in so far
as directed towards Henderson's first four periods of segregation and exclude
from probation Henderson's averments in respect of said periods. Quoad
ultra we shall, as regards statutory time-bar, allow to proceed his
petition and those at the instance of Cairns and Blanco.
Mora
[90] In each of the
petitions at the instance of Henderson, Blanco and Cairns, in addition to the time-bar plea
discussed above, the Scottish Ministers have tabled a plea in these terms:
"The petitioner being barred by mora,
taciturnity and acquiescence from insisting in this petition, the petition
should be dismissed."
The answers to each petition contain an averment in terms
similar to those of the plea-in-law. In
the answers to the petition at the instance of Henderson, this is followed by an averment
that the period of removal from association referred to by the petitioner came
to an end on 13 February 2004.
(Although not the subject of express averment, Henderson's petition appears from the relative
interlocutors to have been served on the Scottish Ministers between 9 and 30
June 2004). In the answers to the petition at the
instance of Blanco, it is followed by averments that the petition was served on
the Scottish Ministers on 6 November 2003, and that the period of removal
referred to by the petitioner came to an end on 7 January
2003. In the answers to the petition at the
instance of Cairns, it is followed by an averment that the petition was
served on the Scottish Ministers on 14 November 2003, and that the period in which the
petitioner was removed from association came to an end in December 2002. Our attention was not directed to any other
averments of potential relevance to the plea in any of these three cases.
[91] The Lord
Ordinary narrated in her Opinion that counsel for the petitioners drew attention
to the requirements for a relevant plea of mora, under reference to Hanlon v Traffic Commissioner 1988 SLT 802, Dempsey v Parole Board for
Scotland 2004 SLT 1107, Singh v Secretary of State for the Home Department
2000 SLT 533 and Caswell v Dairy Produce Quota Tribunal for England and
Wales [1990] 2 AC 738, and submitted that the Scottish Ministers had failed
to make averments that could support such a plea. The Lord Ordinary further narrated that
counsel for the Scottish Ministers accepted that they did not have sufficient
averments to support a plea of mora, but submitted that, since the remedy
sought by each petitioner was a public law remedy and inherently discretionary,
it was open to the court to withhold it if the claim was not brought promptly. No authorities were cited to the Lord
Ordinary in support of this submission.
She held that the submission for the Scottish Ministers was not
well-founded; there was no lesser plea than that of mora where a party sought
to rely on the other's delay in raising proceedings; the authorities relied on
by the petitioners all concerned public law remedies, and it was clear from a
consideration of them that, for delay to be relevant, it required to be delay
in circumstances where there had been relevant reliance or prejudice to the
party seeking to rely on it. She said
that there was no suggestion in the authorities that it was open to the court,
in the exercise of its general discretion, to refuse the remedy sought simply because
the proceedings could be characterised as not having been brought
promptly. She accordingly repelled the
pleas in question.
[92] Before us, Mr Brailsford,
on behalf of the Scottish Ministers, withdrew the concession that they did not
have sufficient averments to support a plea of mora. He submitted that, although there were no
specific averments of prejudice or acquiescence, it should not be necessary in
public law cases for these elements to be averred in order for the plea to be
sustained, and that the law should be developed accordingly. In support of this argument, counsel referred
to dicta in four cases. In King
v East Ayrshire Council 1998 SC 182
Lord President Rodger, in delivering the Opinion of the Court, said at page
188:
"We accept that, in general,
applications for judicial review should be made at the earliest possible
opportunity and a failure to do so may well lead to an inference of
acquiescence which will be fatal to the application."
In Swan v Secretary of State for Scotland 1998 SC 479
Lord President Rodger, in delivering the Opinion of the Court, said at page
487:
"It is, of course, the case that
judicial review proceedings ought normally to be raised promptly and it is also
undeniable that the petitioners let some months pass without starting these
proceedings. None the less, in
considering whether the delay was such that the petitioners should not be
allowed to proceed, we take into account the situation in which time was
allowed to pass."
After explaining certain aspects of the petitioners'
position, he continued:
"We have explained that in our view
the respondent was not prejudiced by any lapse of time before the proceedings
began. In these circumstances we do not
consider that any delay was such that the petitioners should be denied the
right to pursue these proceedings."
In Singh v Secretary of State for the Home Department,
supra, Lord Nimmo Smith said at page
537:
"It is well recognised that a plea of
mora, taciturnity and acquiescence may, in appropriate circumstances, be
sustained in an application for judicial review. The classic definition of the plea is found
in the opinion of Lord President Kinross in Assets
Co. Limited v Bain's Trustees
(1904) 6 F 692 at page 705 (the decision in the House of Lords [(1905) 7 F (HL) 104] does not affect this
statement). The passage concluded with
this sentence:
'But in order to lead to such a plea
receiving effect, there must, in my judgment, have been excessive or
unreasonable delay in asserting a known right, coupled with a material
alteration of circumstances, to the detriment of the other party.'
The plea of mora, taciturnity and
acquiescence is a plea to the merits: Halley v Watt 1956 SC 370. The
definition in Assets Co. Limited v Bain's Trustees is more readily
applicable to a case involving private rights, but in a series of decisions
that has been held to be applicable in the field of judicial review. Reference was made during the course of the
hearing to Hanlon v Traffic Commissioner 1988 SLT 802, Watt v Secretary of State for Scotland [1991] 3 CMLR 429, Atherton v Strathclyde Regional Council 1995 SLT 557, Conway v Secretary of State
for Scotland 1996 SLT 689, Ingle v
Ingle's Trustee 1999 SLT 650 and Noble v City of Glasgow Council 2000 Hous LR 38. It does not appear to me to be possible to
define the plea of mora, taciturnity and acquiescence more precisely than the dictum in Assets Co. Limited v Bain's
Trustees to which I have made reference.
The plea is necessarily protean and it must depend on the particular
circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time,
as related to the surrounding circumstances, may be such as to yield the
inference of acquiescence in the decision in question. Usually, there will have been such alteration
of position on the part of one of the parties, or of third parties, as,
together with the passage of time, to yield the inference of acquiescence. The petitioner may, however, be in a position
to put forward an explanation for the delay sufficient to rebut the inference. The concept of detriment to good
administration appears to me to have a part to play in all of this, not as an
abstraction but where further administrative action has been taken in the
belief that the decision in question has been acquiesced in."
Finally, in Regina (Burkett) v Hammersmith and Fulham London Borough
Council and Another [2002] 1 WLR 1593, Lord Hope said, at page 1613, paragraph
[63]:
"The principal protection against
undue delay in applying for judicial review in Scotland is not to be found ... in any
statutory provision but in the common law concepts of delay, acquiescence and
personal bar: see Clyde and Edwards, Judicial
Review, paragraph 13.20. The
important point to note for present purposes is that there is no Scottish
authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is
sufficient to bar proceedings for judicial review in the absence of
circumstances pointing to acquiescence or prejudice... As Lord Nimmo Smith said in the Singh case [supra], at p. 536, none of the cases in Scotland provide support for a plea of
unreasonable delay, separate and distinct from a plea of mora, taciturnity and
acquiescence, in answer to an application for judicial review."
[93] On behalf of
the petitioners Henderson, Blanco and Cairns, Mr O'Neill submitted that the Lord
Ordinary had reached the correct view on the authorities, and that in the
absence of averments to support it a plea of mora, taciturnity and acquiescence
was bound to fail. He submitted in
addition, under reference to Penman v
Fife Coal Company 1935 SC (HL) 39,
per Lord Macmillan at pages 45 to 46, that a nullity could not be ratified by
acquiescence.
[94] In considering
the submissions we remind ourselves, in the first place, of the meaning of the
words of the plea. Mora, or delay, is a
general term applicable to all undue delay (see Bell's Dictionary, s.v. "Mora"). Taciturnity connotes a failure to speak out
in assertion of one's right or claim.
Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three
elements must be present. In civil
proceedings delay alone is not enough;
the position in criminal proceedings may be otherwise (see Robertson v Frame 2006 SCCR 151, per Lord Rodger of Earlsferry at paragraph
[37]). We have quoted the passage from
Lord Nimmo Smith's Opinion in Singh,
approved (albeit obiter) by Lord Hope
in Burkett, because counsel were
agreed that this was the fullest treatment of the subject in judicial review cases. While we are content to adopt it, we would
emphasise that prejudice or reliance are not necessary elements of the
plea. At most, they feature as
circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always
to be inferred from the whole circumstances, which must therefore be the
subject of averment to support the plea.
In none of the three cases in which the plea has been tabled have the
Scottish Ministers made any averment of acquiescence, let alone of circumstances
from which it might be inferred. Without
such averments, there is no relevant basis for the plea, and the Lord Ordinary
was bound to repel it.
[95] For these
reasons, we reject this ground of the cross-appeal by the Scottish Ministers in
these three cases. In the circumstances,
it is unnecessary for us to consider Mr O'Neill's submission that in any event
it is not possible to ratify a nullity by acquiescence. In the absence of full argument on this
submission, we prefer to reserve our opinion on it.
Carltona
[96] Rule 80(5) of
the 1994 Rules provides that a prisoner who has been removed from association
shall not be subject to such removal for a period in excess of 72 hours from
the time of the order except where "the Scottish Ministers" have granted
written authority on the application of the Governor, prior to the expiry of
that period. Rule 80(6) provides that an
authority granted under Rule 80(5) shall have effect for the period of one
month but that "the Scottish Ministers" may on any subsequent application of
the Governor renew the authority for further periods of one month commencing
from the expiry of the previous authority.
[97] None of the
orders in issue in the present petitions was signed by any Scottish Minister
(or by any junior Scottish Minister).
Each was signed by a civil servant within the SPS. The petitioners have no averments attacking
the personal suitability or competence of any of the individual signatories but
they maintain on various grounds that these grants and renewals of authority
were unlawful. The Scottish Ministers
submitted to the Lord Ordinary that this attack upon the validity of these
orders was irrelevant. They relied on
the principle described in Carltona
Limited v Commissioners of Works
[1943] 2 All ER 560 ("the Carltona
principle"). The Lord Ordinary accepted
the Scottish Ministers' contention and excluded that part of each of the
petitioners' cases from probation.
[98] As part of
their cross-appeal the petitioners have challenged the Lord Ordinary's decision
on this aspect. A contention advanced by
the petitioners in the Outer House (to the effect that the Carltona principle did not apply to the Scottish Ministers) was not
renewed in the reclaiming motion.
However, certain other contentions were insisted in.
[99] The
petitioners argued in the first place that, having regard to section 39 of the
Prisons (Scotland) Act 1989 (under which the 1994 Rules were made), the terms
of the 1994 Rules themselves and the interference with prisoners' rights
involved in the application of Rule 80, it was necessarily implied that the
Scottish Ministers would personally perform the functions conferred on them by
Rule 80. The Carltona principle, while not expressly excluded, was thus excluded
by necessary implication. Section 39 of
the 1989 Act authorised the Scottish Ministers to make rules, including rules
authorising the Governor, or any other officer of a prison, or some other
person or class of persons specified in the Rules to exercise a discretion. The 1994 Rules had in Rules 80(5) and (6) in
effect authorised the Scottish Ministers themselves to exercise the functions
there conferred on them. Having made
rules which conferred those functions on themselves, the Scottish Ministers
could not derogate from the Rules by authorising some other person or persons
to exercise them. Other provisions of
the statute pointed to persons of a particular description being authorised to
do certain things. The Rules themselves
were very specific about who was authorised to do what. While it was not contended that at every
point at which the Rules referred to the "the Scottish Ministers" the Carltona principle was excluded, in the
context of Rule 80 it was. The general
import of the statutory provision was to suggest that independent scrutiny by
someone outside the walls of the prison was required for the purposes of
extensions or renewals of extensions of segregation. In any event, if grants and renewals under
Rule 80(5) and (6) could be granted by officials, such officials should be only
those who had been named and properly authorised to perform this function. Such officials should be specialised and
should have appropriate experience; they should at least be higher in grade
than the Governor who had made the relative Rule 80(1) order. Particular reliance was placed on the
speeches of Lords Templeman and Griffiths in Reg. v Home Secretary, ex
parte Oladehinde[1991] 1 AC 254.
Moreover, it was plain, under reference to the "Durno Memorandum"
referred to by the Lord Ordinary, that grants and renewals under Rule 80(5) and
(6) had been purportedly granted by officials who were not authorised to grant
them. Purported grants by officials who
were not named in the Durno Memorandum would be unlawful under Article 8 of the
Convention. The legislation should not
be construed so as to have that effect.
To comply with that Article the law must specify the framework for
interference with Article 8 rights with a degree of precision. The Ministers could not simply rely on
"departmental practice" (In re Golden
Chemical Products Ltd [1976] Ch 300) because the evidence was that the
practice did not sanction what took place.
The Carltona doctrine
envisaged an ordered devolution to appropriate civil servants of
decision-making authority (Oladahinde,
per Lord Griffiths at page 303C-F; R (on
the application of National Association of Health Stores) v Department of Health [2005] EWCA Civ 154
at paragraphs [24] and [71]).
[100] In Carltona manufacturers of food products whose factory
had been requisitioned under the provisions of the Defence (General)
Regulations 1939 contended that the relative notice of requisition was, on a
number of grounds, invalid. One of the
points taken in the Court of Appeal was that the notice had been signed by an
official and that neither the Commissioners of Works nor the First
Commissioner, in whom by statute the functions and powers of the Commissioners
were vested, had applied their or his mind to the subject-matter of the
notice. The First Commissioner was a
Minister of the Crown. In that context
Lord Greene MR (with whose observations the other members of the court agreed)
said, at page 563:
"In the administration of government
in this country the functions which are given to ministers (and
constitutionally properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister could ever
personally attend to them. To take the
example of the present case no doubt there have been thousands of requisitions
in this country by individual ministries.
It cannot be supposed that this regulation meant that, in each case, the
minister in person should direct his mind to the matter. The duties imposed upon ministers and the
powers given to ministers are normally exercised under the authority of the
ministers by responsible officials of the department. Public business could not be carried on if
that were not the case.
Constitutionally, the decision of such an official is, of course, the
decision of the minister. The minister
is responsible. It is he who must answer
before Parliament for anything that his officials have done under his
authority, and, if for an important matter he selected an official of such
junior standing that he could not be expected competently to perform the work,
the minister would have to answer for that in Parliament. The whole system of departmental organisation
and administration is based on the view that ministers, being responsible to
Parliament, will see that important duties are committed to experienced
officials. If they do not do that,
Parliament is the place where complaint must be made against them."
In Oladehinde Lord
Griffiths said at page 303:
"It is well recognised that when a
statute places a duty on a minister it may generally be exercised by a member
of his department for whom he accepts responsibility: this is the Carltona principle.
Parliament can of course limit the minister's power to devolve or
delegate the decision and require him to exercise it in person."
His Lordship then went on to consider whether, under the
terms of the statute there under discussion, there was any such limitation in
respect of the decision in question.
[101] It is accepted
that in the present case there is no express exclusion of the Carltona principle. We are not satisfied that the terms of either
the Prisons Act 1989 or the 1994 Rules made thereunder give rise to any
implication that the doctrine is excluded.
The Act (as read subsequent to devolution) empowers the Scottish
Ministers to make rules by which they may authorise a specific person or class
of persons to discharge certain functions.
In our view it does not follow that when a reference is made in the
Rules made under the statute to a power or function being exercised by "the
Scottish Ministers" that that power or function must be exercised by them
personally. The 1994 Rules give various
powers and functions to the Scottish Ministers.
It is not suggested by the petitioners that wherever these words are
found in the Rules, the relative power or function or responsibility can be
exercised only by the Scottish Ministers personally. Although the exercise of the powers given by
Rule 80(5) and (6) may have important consequences for prisoners, we are not
persuaded that that circumstance justifies the inference that Parliament
intended to exclude the application of the principle in that context. There is no obligation on a minister to
exercise his powers personally even where these powers involve a serious invasion
of the freedom of the subject (HM Advocate
v Copeland 1988 SLT 249, per Lord
Jauncey at page 251).
[102] The essence of
the Carltona principle is that the
act or decision of the official is constitutionally that of the minister; the
official acts as the minister himself and the official's decision is the
minister's decision (R v Skinner [1968] 2 QB 700, per Widgery LJ
at page 707). Although in the cases
there are frequent references to an "authorised" official or officials the
doctrine does not appear to require express or specific authorisation of the
official by the minister in question (R v
Skinner; In re Golden Chemical Products Ltd). The point of specific authorisation did not
arise in Oladehinde. It is, as a matter of law, sufficient that
the official is a civil servant in the relative department or at least that he
makes the decision or does the act as part of an "ordered devolution to
appropriate civil servants" (R (National
Association of Health Stores) v Secretary
of State for Health [2005] EWCA Civ 154, per Sedley LJ at paragraph
[26]). Although the word "delegate" has
on occasions been used as an alternative to "devolve" (for example, by Lord
Griffiths in Oladehinde at page
303C), the doctrine does not involve any question of agency or of delegation as
between the minister and the relative departmental official (Metropolitan Borough and Town Clerk of
Lewisham v Roberts [1949] 2 K.B.
608, per Jenkins J at page 629, cited with approval by Widgery LJ in R v Skinner
at page 708). Prima facie, accordingly, the circumstance (which is not disputed)
that all the signatories of the Rule 80(5) and (6) orders were civil servants in
the SPS would suffice to bring the Carltona
principle into operation.
[103] Particular
challenges might be made on Wednesbury
grounds (for example, where a "tea lady" purports to authorise an instrument of
state) but no such challenge is made to any of the decisions in the present
petitions: Regina v Crocker
(Court of Appeal, unreported, 19 December 1997). Nor do the petitioners positively assert that
any of the decisions were in fact made by a person unsuited by grading or
experience to make them.
[104] In our view no
relevant inference can be drawn from the "Durno Memorandum". It is dated some 16 months prior to the first
of the orders challenged. The circumstance
that some of the officials who signed the relative orders do not, on the face
of the Memorandum, meet the descriptions mentioned in it does not justify the
inference that they were not, at the time when the orders were made, persons
whose acts were those of the Scottish Ministers.
[105] For these
reasons we reject this ground of appeal.
Proportionality
Pleadings
[106] In each
petition the remedies sought by the petitioner (Statement 3) include the
following:
"(a) declarator that the said orders
and grants and renewals of authority, authorising the general segregation of
the petitioner under Rule 80 of the 1994 Rules, were disproportionate et separatim unreasonable and therefore
unlawful".
That statement is supported, in each petition, by a plea-in-law
in the following terms:
"1.
The segregation of the petitioner under rule 80 of the Rules being
disproportionate et separatim
unreasonable and unlawful, declarator should be pronounced as sought."
In addition, each petition contains further averments relating
to proportionality, taking the form first of a general assertion reflecting the
declarator sought and the plea-in-law, and secondly a brief passage of averment
elaborating on the circumstances in which it is alleged that the Scottish
Ministers acted disproportionately.
[107] The Lord
Ordinary, having heard argument as to whether the law recognised
proportionality as an independent ground for judicial review of administrative
action, concluded that it did not. She
sought to give effect to that decision by excluding from probation the words
"disproportionate et separatim" in
Statement 3(a), the other averments about proportionality, and the references
to proportionality in the first plea-in-law in each petition. The averments excluded in each petition are
identified in detail in the Lord Ordinary's Opinion at paragraph [95]. Before this court Mr Wolffe for the Scottish
Ministers, intervening in the course of Miss Carmichael's submissions for the
petitioners, accepted that, whatever view was taken of the proposition that
proportionality was an independent ground for judicial review, the
proportionality of the Scottish Ministers' actings might require to be
addressed in the context of the petitioners' cases under Article 8 of the
Convention, and that the Lord Ordinary had therefore gone too far in excluding
from probation all of the averments about proportionality. Mr Wolffe suggested, however, that the
question of proportionality was unlikely to be of practical significance in the
determination of the cases, and therefore suggested that it was unnecessary for
us to hear full argument on the point, and expressed a willingness to have the
whole averments and pleas about proportionality included in the pleadings
remitted to probation in the event of a proof before answer being allowed. Mr O'Neill submitted in reply that that
course should not be followed, and that the court should hear the parties' full
submissions on the question of proportionality.
It would, he submitted, be unsatisfactory for the issue to return to the
Outer House, with the Lord Ordinary's exclusion of averments from probation
overturned, but with no concession by the Scottish Ministers and no decision
from this court on the issue of principle.
Having considered these submissions we decided to hear full argument on
the proportionality issue. We accepted,
however, that if we were to agree with the Lord Ordinary that proportionality
is not recognised as an independent ground for judicial review, our decision to
that effect would be adequately reflected by (i) excluding from probation the
words "disproportionate et separatim"
in Statement 3(a) in each petition and (ii) repelling the first plea-in-law in
each petition so far as it referred to proportionality. The other averments could be left standing
for such relevance as they might have to the Article 8 cases.
Written submissions
[108] The Lord
Ordinary's record of the submissions made to her on the issue of
proportionality as an independent ground for judicial review, and her reasoning
in concluding that it is not recognised as constituting such a ground are to be
found in paragraphs [83] to [95] of her Opinion. The petitioner's written submissions in
support of their challenge to the soundness of that aspect of the Lord
Ordinary's decision are set out in paragraphs 4.1 to 4.15 of their Statement of
Argument. The Scottish Ministers'
written submissions supporting the Lord Ordinary's view are contained in
paragraphs 176 to 185 of their Note of Argument. The oral submissions on this issue were made
by Miss Carmichael for the petitioners and Mr Ross for the Scottish Ministers.
Petitioners' submissions
[109] In opening her
submissions, Miss Carmichael said that there was no dispute between the parties
as to what is meant by proportionality.
She referred to De Freitas v Ministry of Agriculture [1999] 1 AC 69 (PC) in which Lord Clyde, delivering the judgment of the Board, and quoting
observations of Gubbay CJ in the High Court of Zimbabwe in Nyambirai v National Social
Security Authority [1996] 1 LRC 64 at page 75, said (at page 80):
"In determining whether a limitation
is arbitrary or excessive, he said that the court would ask itself;
'whether: (i) the legislative
objective is sufficiently important to justify limiting a fundamental right; (ii)
the measures designed to meet the legislative objective are rationally
connected to it; and (iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.'"
[110] The first
substantive question addressed by Miss Carmichael was whether the case of Regina v Secretary of State for the Home Department, ex parte Brind and Others [1991] 1 AC 696 stood in the way of
recognition of proportionality as an independent ground for judicial review
unless and until the House of Lords granted it such recognition. Her submission was that that question fell to
be answered in the negative. Before
analysing the speeches in Brind she
drew our attention to the observation of Lord President Hope in West v Secretary of State for Scotland 1992 SC 385 at page 413:
"The categories of what may amount to
an excess or abuse of jurisdiction are not closed, and they are capable of
being adapted in accordance with the development of administrative law."
(See also Clyde and Edwards, Judicial
Review, paragraph 14.10.)
[111] Miss Carmichael
submitted that in Brind only Lords
Ackner and Lowrie were categorically opposed to the acceptance of
proportionality as an independent ground for judicial review. Lord Bridge of Harwich, although acknowledging
that "any restriction of the right of freedom of expression requires to be
justified and that nothing less than an important competing public interest
will be sufficient to justify it", applied the familiar test of reasonableness
(at pages 748G to 749B). At page 749G he
agreed with Lord Roskill on the possible future development of the law. Lord Roskill, after quoting Lord Diplock's
reference in Council of Civil Service
Unions v Minister for the Civil
Service [1985] AC 374 at page 410 to "the possible adoption in the future
of the principle of 'proportionality'", and holding that that was not the case
in which such adoption should begin, said (at page 750E):
"But so to hold in the present case
is not to exclude the possible future development of the law in this respect."
Lord Templeman (at page 751F) referred to the Convention and
the principle of proportionality, and observed that "applying these principles"
the Secretary of State had not abused or exceeded his powers. Lord Ackner expressed the view (at page 762G)
that "in order to invest the proportionality test with a higher status than the
Wednesbury test [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223], an inquiry into and a
decision upon the merits cannot be avoided."
He went on (at page 763A) to say that unless and until Parliament
incorporated the Convention into domestic law, there was no basis on which
English courts could apply the doctrine of proportionality. Lord Lowry (at page 766G-H) perceived that
proportionality was being deployed in order to move the focus of discussion
into an area in which the court would feel more at liberty to interfere with
the decision, and observed that there was no authority for saying that
proportionality was part of English common law, and a great deal of authority
the other way. Having regard to all of
these expressions of opinion, the proper conclusion, Miss Carmichael submitted,
was that Brind left open the
possibility that the law might develop in such a way as to admit the
recognition of proportionality as an independent ground for judicial
review. Brind was in any event not binding on a Scottish court.
[112] Miss Carmichael
then embarked on a review of the way in which the matter had been treated in
cases since Brind. There was, she said, a great deal of judicial
enthusiasm for departing from the test of Wednesbury
reasonableness and adopting instead the test of proportionality. In Regina
v Chief Constable of Sussex, ex parte
International Trader's Ferry Limited [1999] 2 AC 418 at page 452, Lord
Cooke of Thorndon criticised the "tautologous formula" used in Wednesbury and expressed a preference
for the "simple test" used in Secretary
of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014, namely whether the decision in
question was one which a reasonable authority could reach. He said:
"These unexaggerated criteria give
the administrator ample and rightful rein, consistently with the constitutional
separation of powers."
Miss Carmichael submitted that these observations indicated
an inclination to get away from the language of Wednesbury. In Regina (Daly) v Secretary
of State for the Home Department [2001] 2 AC 532 Lord Cooke went
further. In paragraph 32 at 549, he
said:
"I think that the day will come when
it will be more widely recognised that [Wednesbury]
was an unfortunately retrogressive decision in English administrative law, in
so far as it suggested that there are degrees of unreasonableness and that only
a very extreme degree can bring an administrative decision within the
legitimate scope of judicial invalidation.
The depth of judicial review and the deference due to administrative
discretion vary with the subject matter.
It may well be, however, that the law can never be satisfied in any
administrative field merely by a finding that the decision under review is not
capricious or absurd."
In Regina (Alconbury Developments Limited and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 Lord Slynn of Hadley went
further still. In paragraph 51 (page
321A) he said:
"I consider that even without
reference to the Human Rights Act 1998 the time has come to recognise that this
principle [proportionality] is part of English administrative law, not only
when judges are dealing with Community acts but also when they are dealing with
acts subject to domestic law."
[113] In Regina (Association of British Civilian
Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397 the position was reviewed in the Court of Appeal. In paragraph 34 of the judgment of the court
delivered by Dyson LJ (at page 1413C), under reference to Alconbury and Daly, it is
noted that in these cases support is to be found for the recognition of proportionality
as part of English domestic law in cases which do not involve Community law or
the Convention. The judgment continues:
"It seems to us that the case for
this is indeed a strong one. As Lord
Slynn points out, trying to keep the Wednesbury
principle and proportionality in separate compartments is unnecessary and
confusing. ... Although we did not hear argument on the
point, we have difficulty in seeing what justification there now is for
retaining the Wednesbury test."
Nevertheless, the court went on (in paragraph 35) to say:
"But we consider that it is not for
this court to perform its burial rites.
The continuing existence of the Wednesbury
test has been acknowledged by the House of Lords on more than one
occasion. ... [In Brind]
all of their Lordships rejected the proportionality test ... and applied the
traditional Wednesbury test. In other words they closed the door to
proportionality in domestic law for the time being."
In paragraph 36 the court added:
"The suggestion that it is open to
this court to hold that the Wednesbury
test is no longer part of English domestic law is entirely at odds with the
approach of the House of Lords in the Brind
case and in the International
Trader's Ferry case."
Miss Carmichael submitted that the Court of Appeal was in
error in reaching that conclusion.
[114] While
maintaining the submission that it was open to us to recognise proportionality
as an independent ground for judicial review generally, Miss Carmichael also
advanced a narrower submission to the effect that, in cases concerned with
fundamental rights at common law, the courts had already used the
proportionality test. She sought to
support that proposition by reference to Regina v Lord
Chancellor, ex parte Witham [1998] QB 575 per Laws J at page 585, although
that case is more readily understood as an example of the proposition that the
right of access to the courts cannot be abrogated by implication. She also referred to Regina v Secretary of State
for the Home Department, ex parte Leech [1994] QB 198 per Steyn LJ at 217G, Regina
v Secretary of State for the Home
Department, ex parte Simms [2000] 2 AC 115, per Lord Steyn at page 130B and
Regina (Daly) v Secretary of State for the Home Department. These cases demonstrated, it was submitted,
that it was recognised that there should, at common law, be the minimum
interference with fundamental rights necessary to attain a legitimate
objective. That reflected the principle
of proportionality. There was a clear
category of common law fundamental rights cases where the appropriate measure
of scrutiny was in accordance with the principle of proportionality.
[115] In order to
bring the petitioners within the scope of that narrower submission, Miss
Carmichael submitted that their segregation infringed their fundamental rights
at common law. She submitted that a
convicted prisoner, in spite of his imprisonment, retains all civil rights
which are not taken away expressly or by necessary implication (Regina v Board of Visitors of Hull Prison, ex parte St Germain [1979] 1 QB
425; Raymond v Honey [1983] 1 AC 1, per Lord Wilberforce at page 10G, Lord Bridge
of Harwich at page 14F; Simms per
Lord Steyn at page 120G). Miss
Carmichael recognised that the case of Regina v Deputy
Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 might be said
to constitute an obstacle to the adoption of that approach in the context of
the segregation of prisoners. In that
case the appellant claimed private law damages for the tort of false imprisonment. Lord Bridge of Harwich (at page 160H) said:
"But where the power [to segregate]
has been exercised in good faith, albeit that the procedure followed in
authorising its exercise was not in conformity with [the rules], it is
inconceivable that the legislature intended to confer a cause of action on the
segregated prisoner."
At page 163B he added:
"... the concept of a prisoner's
'residual liberty' as a species of freedom of movement within the prison
enjoyed as a legal right which the prison authorities cannot lawfully restrain
seems to me quite illusory. The prisoner
is at all times lawfully restrained within closely defined bounds and if he is
kept in a segregated cell, at a time when, if the rules had not been
misapplied, he would have been in the company of other prisoners ... elsewhere,
this is not the deprivation of his liberty of movement, which is the essence of
the tort of false imprisonment, it is the substitution of one form of restraint
for another."
(See also per Lord Jauncey of Tullichettle at page 176H). Miss Carmichael sought to distinguish that
case on the basis that it related to a private law cause of action, and
suggested that it did not apply where what was in issue was a public law
remedy. She cited Miller v The Queen [1985]
24 DLR (4th) 9, a Canadian case in which it was held that habeas corpus lay to challenge a
particular form of detention within the penitentiary system. At page 30, Le Dain J, giving the judgment of
the court, said that the particular form of detention "involves a significant
reduction in the residual liberty of the inmate," and held that there was no
sound reason in principle why habeas
corpus should not be available to challenge it. Miss Carmichael also cited Regina (Munjaz) v Mersey
Care NHS Trust [2002] 2 AC 148, a case concerned with detention in a mental
hospital. Lord Bingham of Cornhill at
paragraph 30 (page 192B), in the context of dealing with a claim under Article
5 of the Convention, observed that the Canadian approach of residual liberty
does not form part of Convention jurisprudence.
Lord Steyn, however, in his dissenting judgement, described the concept
as a "logical and useful one" (paragraph 42, page 194H), and suggested that Hague should no longer be treated as
authoritative (page 195E). In the public law context of the present
petitions, Miss Carmichael submitted, segregation should be seen as a
restriction imposed on such residual right to liberty as was not taken away by
the fact of imprisonment, and should therefore be tested by reference to
proportionality.
Respondents' submissions
[116] Mr Ross opened
his submissions by setting out a number of propositions which the Scottish
Ministers do not dispute. First,
proportionality is a key concept in determining, when Convention rights are
engaged, whether there has been a breach of such rights. Secondly, proportionality is a general
principle of Community law. Thirdly,
where interference with common law fundamental rights is asserted, scrutiny
under the flexible concept of reasonableness will be more intense than in other
cases; in such cases the result will frequently be the same whether the test
used is reasonableness or proportionality.
Fourthly, use of the concept and language of proportionality is to be
found in some cases dealing with common law fundamental rights. What the Scottish Ministers do dispute in
this chapter of the reclaiming motion is (1) whether proportionality is
recognised as a free-standing ground of judicial review available generally at
common law; and (2) whether common law fundamental rights are in issue in these
petitions.
[117] With that
introduction, Mr Ross turned to discuss the implications of Brind.
The key point about that case, he said, was that it was not merely a
case in which various judges had made observations about the concept of
proportionality. The availability of
proportionality as an independent ground of judicial review was specifically
put before the House of Lords for decision (see page 736F). Notwithstanding the dicta which contemplated the possibility of the future development
of the law in that direction, the House of Lords declined to adopt
proportionality as a general ground of judicial review and applied the test of Wednesbury reasonableness. The rejection of proportionality as a common
law ground of judicial review was part of the ratio of the case. Although Brind, as a decision of the House of
Lords in an English appeal, is not formally binding on this court, it was
submitted that we should not depart from it.
The grounds for judicial review are generally regarded as the same in Scotland as in England.
There was no reason to suppose that Brind
would have been differently decided if it had been a Scottish case.
[118] Dealing with
developments since Brind, Mr Ross
accepted that there was a substantial body of opinion that would welcome the
adoption of proportionality as an independent ground of judicial review. It was, however, implicit in the passages
cited by Miss Carmichael that such adoption had not yet taken place. It was accepted that proportionality was not
ruled out for the future. But Miss
Carmichael had cited nothing which suggested that, as a general ground of
review, proportionality had already achieved recognition. The dicta
favouring proportionality did not overrule Brind; they did not change the law.
Mr Ross reviewed the cases founded on by Miss Carmichael. It is unnecessary to record all his comments
here, but the thrust of his submissions was that the decisions in those cases,
as distinct from the individual dicta relied
upon by Miss Carmichael, afforded no support for the propositions (1) that
proportionality had already been recognised as an independent ground for
judicial review which was of general application, or (2) that it could be so
recognised by this court in the present cases. Mr Ross pointed out that in the British Civilian Internees case, the
Court of Appeal was asked to do what the petitioners ask this court to do in
these petitions. At paragraphs 35 and 36
the Court of Appeal declined the invitation to make the innovation of
substituting proportionality for Wednesbury
reasonableness. Although the British Civilian Internees case was not
binding on this court, it should be treated as highly persuasive. As was the case with Brind, the British Civilian
Internees case was concerned with an area in which the law in Scotland was broadly the same as the law in England and Wales (Clyde and Edwards, Judicial Review, paragraph 14.02).
It was desirable that that should continue to be so. Many government decisions might be reviewed
in either jurisdiction, and there were therefore sound practical reasons for
ensuring that the grounds for review were the same in both. In any event, Mr Ross submitted, this was
not a suitable case in which to effect a substantial development of the law of
general application. The introduction of
proportionality in the contexts of the Convention and Community law was a
matter of legislation. If it was to be
introduced as a general common law ground of judicial review, that too should
be left to Parliament, or at least to the House of Lords.
[119] Accepting, as
he did, that the language and concept of proportionality were to be found
applied in certain cases, Mr Ross pointed out that they were all concerned with
rights that were recognised at common law as fundamental. Those cases therefore were of assistance to
the petitioners in the present cases only if they were able to show that
segregation potentially involved infringement of rights of theirs which were
recognised as fundamental at common law.
The petitioners asserted that it did.
To do so they relied on the concept of residual liberty. Although that concept had been adopted in
Canada (Miller v The Queen), it had not found favour in the United Kingdom (Hague, per Lord Bridge of Harwich at page
163B, Lord Ackner at page 166H, Lord Jauncey of Tullichettle at page 176F-H;
see also Munjaz, per Lord Bingham of
Cornhill at paragraph 30). In Munjaz, Lord Steyn in his dissenting
opinion, appeared to accept that the House of Lords in Hague "rules out this concept" (paragraph 42, page 811A), although
he argued strongly that Hague should
no longer be regarded as authoritative (page 811E).
[120] Assuming for
the purpose of argument that the concept of residual liberty was one which
might properly be deployed, Mr Ross went on to argue that it did not follow
that anything that could be described as an aspect of residual liberty should
be regarded as a fundamental right, and so susceptible to review by the test of
proportionality. For a prisoner lawfully
deprived of his liberty, segregation did not engage any fundamental right. It was perfectly consistent to accept that a
prisoner retained such of his civil rights as were not taken away expressly or
by necessary implication, yet to maintain that certain of those retained rights
were not of the same fundamental character as the right to liberty which they
would have had if they had not been convicted and sentenced to
imprisonment. The use of the phrase
"residual liberty" should not be allowed to obscure that distinction. The petitioners had no authority to support
the proposition that segregation engaged a fundamental common law right. Accordingly, even if, contrary to the primary
submission, the concept of residual liberty should be accepted, it did not
follow that the petitioners' cases fell within the category of fundamental
common law rights to which it had been accepted that the test of
proportionality properly applied.
Discussion
[121] The concept of
proportionality has an established, albeit recently attained, place in our
law. First, it is one of the general
principles of Community law. Secondly,
it plays an important part in determining whether, when a Convention right is
engaged, it has been infringed. It has
not, however, yet been recognised as a generally-available common law test of
the validity of administrative action.
In these petitions, the petitioners invite us to innovate upon the law,
and accept proportionality as such a general test of validity. Alternatively, they invite us to hold that their
complaints relate to infringement of fundamental rights, and that, in that
context at least, proportionality is a recognised test of validity.
[122] As counsel
pointed out in their submissions, the possibility that proportionality might be
adopted as a general test of the validity of administrative action has been the
subject of judicial observation in England since 1985 (CCSU v Minister for the Civil Service, per Lord Diplock at page 410). These observations have, however, all been obiter.
When the House of Lords was invited to adopt proportionality in Brind (see page 736F) it declined to do
so. Twelve years later, in the British Civilian Internees case, the
Court of Appeal held that it was not open to it to accept proportionality in
place of Wednesbury reasonableness as
the general test of validity of administrative action.
[123] We accept, of
course, that the grounds for review of administrative action are not closed for
all time (CCSU, per Lord Diplock at page
410; West per Lord President Hope at page
413). Moreover, we are not technically
bound by Brind or the British Civilian Internees case. On the other hand, the submissions made by Mr
Ross as to the desirability of maintaining the situation that the grounds for
review are broadly the same in all the jurisdictions in the United Kingdom are,
in our view, compelling. Much of the obiter discussion on the subject has
been prompted by dissatisfaction with the test of Wednesbury unreasonableness.
It would be possible in theory to recognise proportionality alongside Wednesbury unreasonableness as an
alternative test of the validity of administrative action, although it would be
unsatisfactory and confusing to have in simultaneous operation two tests which
in many cases would overlap. The more
extreme step of rejecting the Wednesbury test
and adopting proportionality in its place is not one which we consider it
appropriate for us to take. To do so
would involve a failure to recognise the view taken of the matter in the House
of Lords in Brind and the Court of
Appeal in the British Civilian Internees case,
and introduce an undesirable dichotomy between the approach to judicial review
in Scotland and in England.
[124] We therefore
reject the primary proposition advanced on the petitioners' behalf that the law
recognises proportionality as the (or a) criterion by which to test the
validity of administrative action generally.
[125] It was not
disputed by the Scottish Ministers that authority can be found, in cases
dealing with alleged infringement of common law fundamental rights, for testing
the validity of the actions complained of by asking whether the interference
complained of was the minimum necessary to achieve a legitimate objective, a
formulation closely akin to proportionality.
In order to rely on those authorities, however, the petitioners had to
maintain that the segregation of which they complain amounted to infringement
of a fundamental right at common law.
The starting point for the argument in support of that contention was
that a convicted prisoner retains all civil rights which are not taken away
expressly or by necessary implication (ex
parte St Germain; Raymond v Honey).
That much we accept. We do not
regard Hague as necessarily standing
in the way of such an argument, since the decision in that case turned on the
nature of the (English) common law tort of false imprisonment (per Lord Bridge
of Harwich at page 163B). However, in so
far as the argument proceeds to rely on the concept of "residual liberty"
derived from the Canadian case of Miller v
The Queen, it is on uncertain
ground. The concept has not been
generally accepted in England.
However, Lord Steyn (in his dissenting speech in Munjaz, at paragraph 42, page 810H) regarded the concept as a
"logical and useful one". We see no objection
to it in principle, provided it is used as no more than a label for those civil
rights not lost on lawful imprisonment, and contains no implication that what
is left is of the same character and importance as that which has been taken
away. It does not follow from the fact
that the incarcerated prisoner retains certain rights that, if segregation
infringes a residual right, that right is a fundamental one.
We accept the submission made by Mr Ross that it is quite consistent
with the principle that a convicted prisoner retains those civil rights that
have not been taken away, to hold that the retained rights are not of the same
fundamental character as the right to liberty which he possessed before being
lawfully imprisoned. We are of opinion
that such rights as the petitioners retained in relation to the manner and
circumstances of their detention were not common law rights of a fundamental
nature. The present petitions therefore
do not fall within the class of cases to which the test akin to proportionality
has been applied.
Decision
[126] We therefore
reject both of the bases on which the petitioners seek to rely on
proportionality as a test of the validity of the decisions to segregate
them. We shall therefore in each
petition (a) exclude from probation the words "disproportionate et separatim" where they appear in
Statement 3(a), and (b) repel the first plea-in-law so far as relating to
proportionality.
Adequacy of reasons
Pleadings
[127] In Statement
3(b) of each petition (as amended), the petitioner seeks:
"declarator that the said
orders under Rule 80(1) of the 1994 Rules [of specified dates] were unlawful by
virtue of non-compliance with Rule 80(4)(c), for failure to specify adequate
and comprehensible reasons for the making thereof".
Before
this court it was common ground between the parties that the issue which would
ultimately fall to be determined was whether, for want of adequate and
comprehensible reasons, the orders were not "in accordance with the law" in
terms of Article 8.2 of the Convention, so as to found a claim of the sort
which the petitioners seek to make. It
was also common ground that that issue was one which should be determined only
after proof. We were therefore invited
to confine our attention at this stage to the narrower question whether the
orders complied with Rule 80(4)(c).
Rule 80
[128] It is convenient at the outset of the
discussion of this issue to set out again the relevant parts of Rule 80. Rule 80 is contained in Part 9 of the Prisons
and Young Offenders Institutions (Scotland) Rules 1994 (the 1994
Rules). That Part is headed "security and control", and begins with
Rule 78, which places on the Governor responsibility for the supervision of the
whole prison and the control of prisoners confined therein. Rule 80 is headed "Removal from association", and is in inter alia the following terms:
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"(1)
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Where
it appears to the Governor desirable for the purpose of -
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(a)
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maintaining
good order or discipline;
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(b)
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protecting
the interests of any prisoner; or
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(c)
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ensuring
the safety of other persons,
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he
may order in writing that a prisoner shall be removed from association with
other prisoners, either generally or during any period the prisoner is
engaged or taking part in a prescribed activity.
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...
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(4)
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If
the Governor makes an order under paragraph (1), he shall -
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(a)
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specify
in the order whether the removal from association is -
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(i)
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in
general; or
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(ii)
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in
relation to a prescribed activity;
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(b)
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if
the removal is in relation to a prescribed activity, specify which activity
the order relates to;
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(c)
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specify
in the order the reasons why he is making it;
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(d)
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record
in the order the date and time it is made; and
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(e)
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explain
to the prisoner the reasons why the order is made and provide him with a copy
of the written order."
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The petitioners' submissions
[129] Of the twenty five Rule 80 orders that are
before the court, the petitioners contended that in respect of all but two the Governor
had failed to state adequate and comprehensible reasons. The two against which no complaint was made
were the orders dated 23 and 24 December 2003 in respect of the petitioner
Henderson (Appendix, II, pages 1129-30 and 1133). Nothing more need be said about those two
orders. The submission was that the
remaining orders fell into two categories.
The first comprised the four orders in respect of the petitioner
Somerville (dated 5 April, 15 May, 12 June and 18 July 2002, Appendix, II,
1026, 1031, 1034 and 1039) and the two orders (only the latter of which is
mentioned in statement 3 of his petition) in respect of the petitioner Blanco
(dated 1 and 8 August 2002, Appendix, II, 1084 and 1087). A determination in respect of these orders
could, it was submitted, be made at this stage.
Declarator should be granted de plano that for want of adequate
and comprehensible reasons they did not comply with Rule 80(4)(c). The second category comprised the orders made
in respect of the petitioners Cairns and Ralston, and those
orders in respect of the petitioner Henderson that were the subject of
challenge. In respect of all of these,
the submission was that the question of their compliance with Rule 80(4)(c)
should be reserved at this stage and only decided after proof.
[130] Having thus set out the scope of his submissions,
Mr Collins on behalf of the petitioners was at pains, by way of preamble to his
substantive submissions, to emphasise that segregation of prisoners was a very
serious matter indeed. That was
acknowledged in the SPS document (2003) giving procedural guidance on Rule 80
(Appendix, I, pages 9 and 14). As was
noted there, it was for that reason that Rule 80 contained such detailed
procedures. The provisions of the Rule
were not made for the administrative convenience of prison officers, or merely
to ensure good record-keeping. They were
a vital protection for the prisoner, who by virtue of his imprisonment had been
deprived of his liberty, but not of his right of association with fellow
prisoners (see, for example, Rules 69(4) and 75(2)). The importance of such
surviving rights might be enhanced by the loss or partial loss of other rights
(R (Daly) v Home Secretary [2001] 2 AC 532, per Lord Bingham of Cornhill at page
537H). The Rules were part of the law, to be strictly interpreted and observed. They set out the limited circumstances in
which, and the procedures subject to which, the right of association might be
interfered with. The importance of the
rules regulating interference with the right of association was further
emphasised by the fact that the practical effect of segregation was
indistinguishable from punishment.
[131] Subject to that emphasis on the seriousness
of segregation, the real starting point for the petitioners' submissions was
Rule 80(4)(c). It is one of a series of
mandatory requirements. It obliges the
Governor, when making a Rule 80(1) order, to "specify in the order the reasons
why he is making it". The Governor's
reasons required to be adequate and comprehensible, and to deal with the
substantial questions in a proper and intelligible way. They were required not to leave the informed
reader and the court in any real doubt as to what the reasons for the decision
were and what were the material considerations which were taken into account in
reaching it. A statutory obligation to
give reasons is designed not merely to inform the person who is the subject of
the decision what the result of the decision is, but to make clear the basis on
which the decision was reached and that it has been reached in conformity with
the statutory requirements. In support
of those propositions, reference was made to Safeway Stores plc v National
Appeal Panel 1996 SC 37 at pages 40-41, Wordie
Property Co Ltd v Secretary of State
for Scotland 1984 SLT 345 and Albyn
Properties Ltd v Knox 1977 SC
108.
[132] It was clear from the terms of Rule 80(1)
that the order had to be "in writing", and from the terms of Rule 80(4)(c) that
the reasons had to be specified "in the order".
It followed that the adequacy and comprehensibility of the reasons had to
be judged by reference exclusively to what was written in the order. That proposition was unaffected by Rule
80(4)(e), which contains a separate obligation to explain the reasons to the
prisoner. It was clear that that
separate obligation followed on the formulation of written reasons in the
order, and that the obligation to explain the reasons was an obligation to
explain the already written reasons, and not an opportunity to provide further
or different reasons over and above those written in the order. An absence of adequate written reasons in the
order therefore could not be cured by showing that, as a result of what
purported to be a paragraph (4)(e) explanation or otherwise, the prisoner was
in fact aware of the reasons for the order.
The Lord Ordinary (at paragraph 124 of her Opinion) was wrong to regard
Rule 80(4)(c) as concerned with record keeping, and not with the interests of
the segregated prisoner. Nor did a
contention that the reason was obvious excuse a failure to state it in the
order (R v London Borough of Lambeth, ex parte Walters [1993] 26 HLR 170, per
Sir Louis Blom-Cooper QC at page 175).
There might be circumstances in which the reasons given would be
inadequate or incomprehensible if attention were confined to the words of the order,
but be capable of being understood as adequate if the words were read in the
context of surrounding circumstances.
That was what was contemplated on the petitioners' behalf in the
acceptance that the issue of whether the orders in question in the cases of the
petitioners Henderson, Cairns and Ralston complied with
the requirements of Rule 80(4)(c) should be reserved until after proof. On the other hand, there was no scope for
proof that the actual reasons for the order were other than those, if any,
expressed in the body of it. The
language of Rule 80(4)(c) excluded any possibility of a remit to the
decision-maker for a re-statement of reasons, such as occurred in Chief Constable, Lothian and Borders Police v
Lothian and Borders Police Board 2005 SLT 315. The Lord Ordinary had erred in
attempting to distinguish the leading English authority in this field - R v Westminster
City Council, ex parte Ermakov [1996] 2 All ER 302.
[133] It was accepted on the petitioners' behalf
that the Rules did not require detailed or elaborate reasons. It was accepted that there might be
overriding considerations, such as the need to avoid disclosure of sensitive
intelligence, that would stand in the way of disclosure of full details of the
reasons. It was not accepted, however,
that that meant that all that was required was that the "gist" of the reasons
be given. The cases in which
observations to that effect had been made (R
v Governor of HM Prison Long Lartin,
ex parte Ross, The Times Law Report, 8 June 1994; Re Conlon's Application [2001] NICA 49; Re Henry's Application [2004] NIQB 11; Re Kemp's Application [2004] NIQB 11) were concerned with different
contexts and different statutory regimes; in particular, the Northern Irish
cases concerned a regime which imposed no statutory obligation to give written
reasons.
[134] It was necessary, counsel submitted, to bear
in mind why reasons are required. The
giving of reasons is "one of the fundamentals of good administration" (Breen v Amalgamated Engineering Union [1971] 2 QB 175, per Lord Denning MR
at page 191). Reasons serve to improve
the quality of decision making; improve the machinery of government; satisfy
the parties affected by the decision, enabling them to assess its soundness;
promote fairness; and encourage decision-makers to apply their minds with due
concentration to the relevant issues (Clyde and Edwards, Judicial Review, paragraph 18.54, cited with approval by Lord Reed
in Chief Constable, Lothian and Borders
Police v Lothian and Borders Police
Board at page 333A-C). The reasons
given in the Rule 80 orders should be read in the light of those purposes
underlying the requirement for reasons.
135] Mr Collins proceeded to advance a number of
separate grounds on which the reasons given in a Rule 80(1) order might be held
to be inadequate or unintelligible.
These grounds are summarised in paragraph 5.3 of the petitioners'
Statement of Argument as points (a) to (e), and for ease of cross-reference we
shall refer to them in that way here.
[136] (Point (a)). First, a statement that an order was desirable
"for the good order of the prison" (or for that matter in words which repeated
or paraphrased any subparagraph of Rule 80(1)) could not by itself amount to an
adequate or comprehensible reason. It
was no more than a reiteration of the substance or purpose of the order, not a
statement of the reasons for it (Clyde and Edwards, Judicial
Review, paragraph 17.24). Reasons
were to be distinguished from purpose.
Rule 80(1) set out the limited purposes for which it was legitimate to
impose segregation. Reasons required to state
why an order was necessary to attain one of the Rule 80(1) purposes. In paragraph 124 of her Opinion the Lord
Ordinary fell into error in treating the purposes for which an order could in terms
of Rule 80(1)(a), (b) and (c) be made as the "three basic reasons [sic] which can be relied on as
justification for segregating a prisoner".
That was to fail to distinguish between purposes and reasons. The Lord Ordinary thus erred in going on to decline
to rule out the possibility that Rule 80(4)(c) was intended to do no more than
ensure that the order identified "the category of reason" (by which she appears
to mean the Rule 80(1) purpose) into which the individual case falls. On the contrary, on a sound view of Rule
80(4)(c), it required more than the reiteration of the language of Rule 80(1) (R v Northamptonshire
County Council, ex parte W [1998] ELR 291 per Laws J at page 296E) or a
statement of the purpose sought to be attained, and required reference to
circumstances relied on as showing that the attainment of that purpose required
the making of the order.
[137] (Point (b)).
Next, counsel submitted that given (a) the severity of the infringement
of the prisoner's rights involved in general segregation, and (b) the
possibility of more limited interference in the form of segregation in respect
of a prescribed activity, reasons for an order for general segregation required
to demonstrate that the Governor had addressed his mind to the possibility of
more limited segregation, in respect only of a prescribed activity, and express
reasons for his not utilising that possibility.
[138] (Point (c)).
Counsel's next submission related to the relationship between the
Governor's power to order segregation under Rule 80 and the procedures relating
to discipline contained in Part 10 of the 1994 Rules. Rule 95 lays down a procedure requiring
officers to report breaches of discipline to the Governor. The range of activities that may constitute a
breach of discipline is set out in Schedule 3 to the Rules. The activities include many that are in any
event criminal offences, but also others that are not. Rule 96 provides for the bringing of
disciplinary charges, Rule 97 for inquiry into disciplinary charges and Rule 98
for adjudication of such charges. Rule
100 regulates the punishments that the Governor may impose on a prisoner found
guilty of a breach of discipline. Rule
95(2) provides that:
"Subject to paragraphs (3)
and (4), where any officer has reasonable grounds for suspecting that a
prisoner has committed a breach of discipline he may, if he considers it
appropriate to do so, remove the prisoner from association with other prisoners
in general pending the making of a report ... and the adjudication of the charge
of breach of discipline."
Counsel's
submission was that in so far as the reason stated for segregation under Rule
80 was the occurrence of conduct which could give rise to disciplinary
procedures (and segregation) under Rule 95, reasons for the making of the Rule
80 order might, in order to be adequate and comprehensible, require to make it
plain that the possibility of disciplinary proceedings (instead of a Rule 80
order) had been considered, and address why in the particular circumstances of
the case that course had not been considered appropriate. It was accepted that there might be good
reason for proceeding under Rule 80 rather than Rule 95, but if there was, that
reason should be disclosed.
[139] (Point (d)).
Rule 80(9) provides that:
"If a prisoner is moved by
the Scottish Ministers from any prison to any other prison in terms of section
10 of the Act, any order under paragraph (1)...made...in relation to the prisoner
whilst confined in the former prison shall cease to have effect, but without
prejudice to the power of the Governor of the prison to which the prisoner is
moved to make a new order under paragraph (1)."
Counsel
submitted that the power of the Governor of the prison to which a prisoner was
moved was to make a wholly new order, if the prisoner was to be segregated in
that prison. That required him to
consider of new the need for such an order, and if it was needed, the scope of
it. He required to apply his own mind to
those questions, and not merely to make a new order because the prisoner had
been segregated in the prison from which he had been moved. The circumstances bearing on what was
required for the maintenance of good order and discipline in the receiving
prison might be quite different. Thus
the reasons for any new post-transfer Rule 80 order must demonstrate that the Governor
of the receiving prison had had regard to all the circumstances. In so far as the reasons yielded the
inference that he had acted simply so as to "continue" the previous order made
in the prison from which the prisoner had been moved, that disclosed
irrationality or a fettering of his discretion.
[140] (Point (e)).
Finally, counsel submitted that the reasons for a Rule 80 order must be
adequately and comprehensibly related to the purpose of the order. Thus, if it was said that there was a desire
to "assess" the prisoner, it required to be apparent from the reason why
assessment necessitated segregation, and could not be carried out in
non-segregated conditions. In the
absence of reasons linking the desire for assessment to the necessity for
segregation, a reference to assessment was not an adequate reason for
segregation.
[141] One other ground of attack on the adequacy
of the reasons stated in certain of the orders emerged in the course of submissions
directed at individual orders. An
example of the phenomenon is to be found in the order of 18 July 2002 (Appendix, II, 1039) in relation to the petitioner
Somerville. The language of the reasons
given in that order coincides with the language of the letter of the same date
seeking Rule 80(5) authority for the extension of the period of segregation
(Appendix, II, 1040). It was submitted,
and seems reasonably clear from the language used, that the letter seeking Rule
80(5) authority had been drafted first, and its text then "cut and pasted" into
the Rule 80(1) order. That was described
in oral submissions as a "sloppy approach", but the petitioners' written
submissions go further, and suggest that in such circumstances the reasons
given are for seeking Rule 80(5) authority, and therefore cannot be reasons for
making the antecedent Rule 80(1) order.
The respondents' submissions
[142] On behalf of the Scottish Ministers, Mr Wolffe
confirmed their acceptance that we should at this stage address only a narrower
question than that raised in statement 3(b) of the petitions. That statement sought declarator that the
orders were "unlawful" by virtue of want of adequate and comprehensible
reasons. At this stage, however, we
should determine only whether it could be said, without evidence, that the
challenged reasons failed to comply with Rule 80(4)(c). If any order did so fail, it was a separate
question whether the consequence was that it was invalid. It was yet another question whether, if
invalid, the order was not 'in accordance with the law" for the purposes of
Article 8 of the Convention. Although Mr
Wolffe, in the course of his submissions, made some observations on the first
of those two subsequent topics, it is not necessary for us to deal with them in
any detail, since it was accepted on the respondents' behalf that only the
first question, whether there was compliance with Rule 80(4)(c), should be
addressed at this stage, and that the two subsequent questions should be
reserved until after proof.
[143] In two respects, Mr Wolffe did not seek to
support the reasoning of the Lord Ordinary.
First, he did not support the Lord Ordinary's observation that Rule
80(4)(c) is concerned with record keeping, and not with the interests of the
segregated prisoner. Secondly, he did
not support the Lord Ordinary in keeping open the possibility that the mere
identification in the order of the Rule 80(1) purpose which it was designed to
attain might be sufficient to amount to adequate reasons for the making of the order.
[144] It was accepted that there was no question,
in the present context, of returning to the decision-maker for a re-statement
of reasons, if the reasons stated in the Rule 80(1) order were inadequate (cf Chief Constable, Lothian and Borders Police v
Lothian and Borders Police Board). Moreover, it was accepted in principle that
it was not open to the respondents to state one reason in the Rule 80(1) order,
then seek to support the order by reference to a quite different reason or
reasons given to the prisoner by way of purported explanation under Rule
80(4)(e) or otherwise. However, it was
submitted that a distinction fell to be drawn between the giving of different
reasons and the elaboration of the reasons stated in the order. There was no reason why explanation, given
pursuant to Rule 80(4)(e), should not expand on what was contained in the
order, if that seemed necessary or appropriate.
Indeed, the obligation to explain might be thought to be meaningless if
it were restricted to repetition of what was in the order, and did not permit
expansion or elaboration.
[145] Evidence of the context in which a Rule
80(1) order was made was, it was submitted, relevant in three ways. First, the context in which a Rule 80(1)
order fell to be made had a bearing on the proper interpretation of the
requirements of the Rule. Secondly, the
context was relevant to the standard of adequacy reasonably to be expected of
the reasons given under Rule 80(4)(c), and the proper approach to scrutiny of
the reasons (Safeway Stores plc v National Appeal Panel, page 40G). Thirdly, the context bore on the subsequent
issue of whether the rule should be construed as rendering invalid an order
that did not contain adequate and comprehensible reasons (R v Soneji [2005] 4 All ER 321).
[146] Prisons, it was submitted, are institutions
that contain in close proximity significant numbers of individuals, some of
whom may be volatile, unpredictable or violent.
Prison authorities have responsibility to keep all prisoners safe and
secure, as well as obligations to staff.
An error of judgment in management could have very serious
consequences. There was a risk of injury
to prisoners and staff. Fulfilment of
the aims of caring for prisoners with humanity and offering them opportunities
of preparing for release would be prejudiced if good order were not
maintained. The maintenance of good
order and discipline was therefore paramount.
In terms of Rule 78 the Governor has a responsibility for maintaining
control. Rule 80 forms part of Part 9 of
the Rules, which is concerned with security and control. The decision whether to make a Rule 80(1)
order is thus a matter of judgment where misjudgment could have serious
consequences. That judgment has to be
exercised by experienced staff in all the relevant circumstances prevailing at
the time. That the making of a Rule
80(1) order requires an exercise of discretionary judgment is reflected in the
language of the rule - "Where it appears
to the Governor desirable for
the purpose". In all these circumstances,
when judging the adequacy of the reasons given for a decision to make a Rule
80(1) order, the Governor should be allowed a wide margin of judgment.
[147] Mr Wolffe dealt in turn with each of the
points identified in paragraph 5.3 of the petitioners' Statement of
Argument. In respect of point (a),
counsel accepted in principle that a mere restatement of the decision could not
amount to adequate or comprehensible reasons for the decision. Purported reasons that amounted to no more
than an assertion that segregation was desirable for one or more of the
purposes listed in Rule 80(1) could not be regarded as satisfying the
requirement for adequate and comprehensible reasons. Purported reasons that merely stated that
segregation was desirable, with or without identification of the purpose which
segregation would serve, could not satisfy the requirement of Rule 80(4)(c).
[148] In respect of point (b), counsel submitted
that there was no automatic need for the reasons for an order for general segregation
to state why segregation in relation to a prescribed activity would not
suffice. What the Rule required was a
statement of the reasons why the Governor was making the order that he was
making, not a statement of the reasons why he was not making some other more
limited order. Of course, there could be
circumstances in which reasons given for an order for general segregation could
be seen on examination to justify segregation only in relation to a prescribed
activity and not general segregation. If
that were the case the reasons would be inadequate as reasons for an order for
general segregation. There was, however,
no mechanistic rule requiring every order for general segregation to explain
why segregation in relation to a prescribed activity would not suffice.
[149] In respect of point (c), counsel submitted
that there was no express or implied requirement that the Governor state why a
Rule 80 order was considered appropriate rather than disciplinary proceedings
under Rule 95. The Rule 80 and Rule 95
powers were distinct, and directed at different purposes (R v Deputy Governor of
Parkhurst Prison, ex parte Hague [1992] 1 AC 58 per Taylor LJ at page 110). Rule 80(1), so far as concerned with matters
of discipline, is concerned with the future maintenance of discipline; whereas
Rule 95 is concerned with the punishment of past breaches of discipline. Provided the decision to segregate was taken
for the genuine purpose of Rule 80(1), it was only reviewable on grounds of Wednesbury unreasonableness (Re Taggart's Application for Judicial Review
(NIQB, 12 March 1997, unreported) per Kerr J).
[150] In respect of point (d), counsel accepted
that the Governor of the prison to which a prisoner was transferred had to make
his own decision as to whether there were adequate reasons for segregation in
the receiving prison. He did not accept,
however, that the receiving Governor was obliged to shut his mind to the fact
that the prisoner had been in segregation in the transferring prison, and to
the conduct or history that had led to that segregation. These were circumstances that could well have
a relevant bearing on the need for segregation in the receiving prison, and
could therefore form part of the reasons for a fresh Rule 80(1) order.
[151] In relation to point (e), it was accepted
that the reasons for a Rule 80(1) order should relate to the purpose for which
the order was thought desirable. It was
not accepted, however, that on that account a reason referring to a need to
assess the prisoner was not an adequate reason for a Rule 80(1) order. Where a prisoner had been transferred after a
period of segregation, returning him to association in the prison to which he
was transferred might well require careful evaluation of the effect that such
return might have on good order or discipline in the receiving prison. It could not be said that a perceived need
for assessment before return to association could not be a legitimate reason
for a Rule 80(1) order in the receiving prison.
Discussion
[152] Rule 80(4)(c) of the 1994 Rules places on
the Governor, when he orders that a prisoner be removed from association, an
express obligation to specify in the order, which must be in writing, the
reasons why he is making it. No doubt
the imposition of that obligation reflects a recognition of the seriousness of
restricting the prisoner's right of association, especially in the context in
which, by virtue of the sentence of imprisonment, his liberty has already been
severely restricted. No doubt, too, the
obligation has been placed on the Governor in the interests of good
administration (Breen v Amalgamated Engineering Union per Lord
Denning MR at page 191); and with a view to securing inter alia that the Governor has properly applied his mind to the
grounds for making the order, and that the prisoner knows why his rights are
being temporarily further reduced, and to facilitate scrutiny of the order (cf
Clyde and Edwards, Judicial Review,
paragraph 18.54). These considerations,
however, merely lie behind the imposition of the express statutory
obligation. It is well settled that a
statutory obligation to give reasons requires the reasons given to be proper,
adequate and intelligible; the decision must "leave the informed reader and the
court in no real and substantial doubt as to what the reasons for it were" (Wordie Property Co Ltd v Secretary of State for Scotland, per
Lord President Emslie at page 348). It
is, of course, accepted that the reasons do not require to be elaborate, but we
do not find it helpful to embark on an abstract discussion of whether it is
sufficient that the "gist" of the reasons be given. What will be sufficient is a matter of
circumstance, and it is preferable to test the adequacy of the stated reasons
by the familiar criterion formulated in Wordie
Property.
[153] It is important to take account of the
structure of Rule 80 as a whole. Rule
80(1) authorises the Governor to order a prisoner's removal from association
with other prisoners only for certain limited purposes. The three purposes that it is legitimate to
seek to attain by a segregation order are the maintenance of good order or
discipline, the protection of the interests of any prisoner and ensuring the
safety of other persons. Segregation
under Rule 80 for any other purpose is not permissible. It is in the context of that power to order
segregation only if it is desirable for certain specified purposes that Rule
80(4)(c) imposes the obligation to specify the reasons for making the order. It is to be noted that it is the reasons for
making the order, not the purpose of the order, that must be specified. The question: "What was the purpose of the
order?" may be answered satisfactorily by the identification of one or more of
the purposes listed in Rule 80(1). The
question: "what were the reasons for making the order?" requires more. It requires the identification of
considerations which justify the conclusion that the order is in the
circumstances desirable for one or more of the Rule 80(1) purposes. The mere identification of one or other of
the prescribed purposes will therefore not serve as a statement of the reasons
for making the order.
[154] Rule 80(4)(e) serves a different
purpose. It is not a second opportunity
to state reasons for the order. It
proceeds on the basis that the reasons have already been stated in the order in
terms of Rule 80(4)(c). It then requires
that the prisoner be given a copy of the written order, and that the reasons
why the order is made be explained to him.
The reasons of which the prisoner is entitled to an explanation are the
reasons stated in writing in the order.
It is not difficult to figure why it was thought appropriate to require
explanation of the reasons to the prisoner.
Prisoners differ in their literacy and their intellectual capacity. Some may have greater difficulty in
understanding the written reasons than others.
Rule 80(4)(e) is an important safeguard to ensure that the prisoner not
only sees, but also understands the reasons given in the order. To an extent, explanation may no doubt
involve expansion or elaboration of the formal written reason, but Rule
80(4)(e) affords no basis for putting forward reasons different from or
additional to those set out in the order.
[155] The question whether a particular Rule 80(1)
order complies with the requirement of Rule 80(4)(c) must be answered by
reference to the terms of the reasons set out in the order. The inquiry is not as to whether adequate and
comprehensible reasons for the making of the order exist, but as to whether the
reasons stated in writing in the order are adequate and comprehensible. It follows that there is no scope for
extrinsic evidence of reasons not mentioned in the order. Reasons not expressed in the order cannot be
put forward as constituting compliance with Rule 80(4)(c), whether on the basis
that they were part of a purported Rule 80(4)(e) explanation given to the
prisoner or otherwise.
[156] That is not to say, however, that there is
no scope for reliance on extrinsic evidence in determining whether the reasons
stated in the order are adequate and comprehensible. For that purpose evidence of background
circumstances may be all-important in placing the stated reasons in context so
as to enable them to be understood and evaluated. That is a corollary of the fact that the test
of adequacy is whether the "informed reader" is left in no real or substantial
doubt as to the reasons for the decision.
Proof of background circumstances may be necessary in order to place the
court in the position of the "informed reader".
That may include evidence designed to give the court a proper
understanding of the prison context, as well as evidence about the background
circumstances of events giving rise to the need for the segregation order in
question.
[157] We turn now to the points summarised in
paragraph 5.3 of the petitioners' Statement of Argument. Point (a) can be dealt with briefly. We have already expressed the view that, on
an analysis of the terms of Rule 80, the reasons required by Rule 80(4)(c) are
to be distinguished from the purposes listed in Rule 80(1)(a), (b) and
(c). A statement of purpose is not a
statement of reasons. An order which
contained no more than a statement that the order was made because it was
desirable for the purpose of maintaining discipline (or otherwise merely
reiterated or paraphrased one of the Rule 80(1) purposes) would thus not comply
with the requirement for specification of the reasons for making the
order. Such an order would contain no
reasons, and would not be capable of being made to comply with Rule 80(4)(c) by
the introduction of extrinsic evidence of reasons not expressed in the order.
[158] Point (b) is not, in our opinion, well
founded. Rule 80(1) contemplates that
the Governor may order segregation generally, or in respect of a prescribed
activity. What Rule 80(4)(c) requires,
however, is reasons for the order that is made, not reasons for not making a
different order. There is, therefore, in
our opinion no general requirement that the reasons for an order for general
segregation must demonstrate that segregation in respect of a prescribed
activity was considered, and explain why it was regarded as insufficient. If, of course, the reason given for general
segregation can be shown on examination to justify only segregation in respect
of a particular prescribed activity, the reason will on that account be
inadequate to justify general segregation.
There is, however, no general rule that adequate reasons for a general
segregation order must explain why a more limited order has not been made.
[159] So far as point (c) is concerned, we
recognise that there is some overlap between the language of Rule 80 and that
of Rule 95. The maintenance of
discipline is one of the purposes for which a Rule 80(1) order may be
made. Breach of discipline may be
addressed under Rule 95. Rule 95(2) also
permits segregation pending disciplinary proceedings. It is thus possible to envisage circumstances
in which the Governor would, on the occurrence of a breach of discipline, have
the option of proceeding under either rule.
But these points of similarity should not obscure the fact that the two
rules have very different focuses. Rule
80 is forward-looking, concerned with the future maintenance of
discipline. Rule 95 is concerned
primarily with the imposition of punishment for a past breach of
discipline. Provided the Governor gives
reasons for making a Rule 80(1) order, the compliance of the order with Rule
80(4)(c) will depend on the reasons given.
There is no obligation on the Governor to include in his reasons for
making a Rule 80(1) order, reasons for proceeding under that power rather than
taking disciplinary proceedings.
[160] There is some force, in our opinion, in
point (d), but the petitioners' counsel pressed it too far. In terms of Rule 80(8), on a prisoner being
moved from one prison to another, any section 80(1) order made by the Governor
of the former prison ceases to have effect.
That cessation of effect is, however, stated to be without prejudice to
the power of the Governor of the latter prison to make a new Rule 80(1)
order. We accept that the Governor of
the receiving prison must make his own decision as to whether segregation is
desirable in his prison, and must formulate his reasons for making the order if
he decides to make one. We accept that
in taking that decision, the Governor must apply his mind to all the relevant
circumstances. We accept that the
maintenance of good order and discipline in the receiving prison may require
attention to be given to quite different considerations from those which
justified the order made by the Governor of the transferring prison. The fact that the order made by the Governor
of the receiving prison in effect "continues" the previous order does not,
however, in our view demonstrate that the receiving Governor has acted
irrationally or has improperly fettered his discretion. While the circumstances prevailing in the
receiving prison will almost always be relevant to the Governor's decision to
make a fresh order there, it does not follow that the fact of the previous
order, or the circumstances which were regarded as justifying the making of
that order, are irrelevant to the making of the new order. It seems to us that, in most cases where a
prisoner is transferred from a prison in which he was segregated to a new
prison, the circumstances that led to that segregation, and the duration and
circumstances of the period of segregation, will be of relevance to the
decision whether or not to make a new order.
Indeed, it would in our view in most cases be irrational to leave those
considerations out of account.
[161] In point (e) the introductory proposition is
sound, but its application to cases where the reasons refer to the assessment
of the prisoner is not. Of course the
reasons for a Rule 80(1) order must be adequately and comprehensibly related to
the purpose of the order. It does not
follow that a reason expressed in terms of assessment of the prisoner before
returning to association needs expressly to explain why such assessment needs
to be carried out with the prisoner in continuing segregation. It is, to our mind, readily understandable
that, where a prisoner has been in segregation for a period of time, his return
to association requires assessment in order to provide material for a properly
informed judgment as to whether a return to association is consistent with
continued attainment of the purpose for which the order was made. It seems to us to be obvious that prima facie such assessment requires to
be carried out before the prisoner's status is changed. We therefore do not consider that such a
reason for continued segregation requires to spell out expressly that the
assessment requires to be made while the prisoner is still in segregation.
[162] Finally, we are of opinion that the criticism
of certain orders on the basis that the reasons have been "cut and pasted" from
the immediately following application for Rule 80(5) authority is completely
without merit. It is scarcely surprising
that, where a Rule 80(1) order is to be made, and it is considered necessary to
continue the segregation for longer than the 72 hours permitted by that
paragraph, the grounds for seeking authority to extend the period of
segregation will be the same as the reasons for making the Rule 80(1)
order. In these circumstances we can see
no valid objection to preparing one document and cutting and pasting the
relevant portion into the other document.
It is of no moment that the text is written as part of the Rule 80(5) application
and cut and pasted into the Rule 80(1) order.
The only relevant question is whether the reasons given in the Rule
80(1) order are adequate to justify the decision to segregate.
Decision
[163] We turn now to consider the application of
the views which we have expressed to the individual Rule 80(1) orders. We should make it clear that we are concerned
only with the submission that the orders do not comply with the requirement of
Rule 80(4)(c) that they should contain a statement of the reasons for making
the order, which reasons are adequate and comprehensible. In the course of his submissions, both
written and oral, Mr Collins mixed in with his submissions about the adequacy
of the reasons stated in the orders observations about other formal
deficiencies of the orders. We are not
concerned at this stage with those other complaints.
[164] As we have already noted, two of the orders
are not challenged for want of adequate reasons. These are the orders of 23 and 24 December
2003 in respect of the petitioner, Henderson (Appendix, II, 1129-30 and 1133,
Nos. 7/13 (104-105) and (108) of process).
Nothing need be done in respect of them, other than to note that their
compliance with Rule 80(4)(c) is not challenged.
[165] There is one order in respect of which it is
accepted by the respondents that the reasons stated are not adequate. That is the order of 15 May 2002 in respect of the petitioner, Somerville (Appendix, II, 1031, No.
7/4 (6) of process). The stated reasons
are: "Transfer in from Barlinnie Segregation Unit. For the good order of the prison." The second sentence is no more than a
reiteration of the purpose of the order.
The first sentence by itself cannot amount to an adequate reason for the
making of the order. We shall therefore
grant declarator that that order does not comply with the requirement of Rule
80(4)(c).
[166] A number of orders are challenged only on
grounds that we have held not to be relevant, namely, failure to explain why
the order is for general segregation rather than segregation in respect of a
prescribed activity (point (b)), or failure to explain why a Rule 80(1) order
was made in preference to disciplinary proceedings (point (c)) or the "cutting
and pasting" of reasons from a Rule 80(5) application. In respect of these orders we find that no
relevant ground of challenge to their compliance with Rule 80(4)(c) has been
put forward. The orders in question are
(1) in respect of the petitioner Somerville the order dated 18 July 2002
(Appendix, II, 1039, No. 7/4 (14) of process), (2) in respect of the petitioner
Blanco the order dated 8 August 2002 (Appendix, II, 1087, No. 7/10 (62) of
process), (3) in respect of the petitioner Ralston the order dated 7 November
2002 (Appendix, II, 1066, No. 7/8 (41) of process), (4) in respect of the
petitioner Cairns the orders dated 9 October 2002, 21 November 2002 and 27
December 2002 (Appendix, II, 1046, 1056 and 1062, Nos. 7/6 (21), (31) and (37)
of process), and (5) in respect of the petitioner Henderson the orders dated 8
October 2002, 9 January 2003, 14 June 2003 and 29 October 2003 (Appendix, II,
1098, 1106,1116 and 1122, Nos. 7/13 (73), (81), (91) and (97) of process).
[167] It is
appropriate, in our view, that the decision as to the compliance of the other
orders with Rule 80(4)(c) should be reserved until after proof. This group includes those where the ground of
challenge relates to an order made after transfer from one prison to another,
or to an order said to be required for the purpose of "assessment" of the
prisoner. While these grounds of
challenge may not necessarily be relevant, we do not consider that the decision
should be taken without the benefit of such evidence as may be properly
admissible to cast light on the stated reasons.
Procedural and
pleading issues
[168] In terms of her interlocutor dated 8 February
2005 in each petition the Lord Ordinary inter
alia excluded certain of the petitioner's averments from probation and quoad ultra allowed parties a proof of
their respective averments. One of the
petitioners' grounds of appeal is directed to the manner in which the Lord
Ordinary proceeded in respect of some of the averments which she excluded from
probation. Before saying more about
these averments, we propose to discuss the procedural context.
[169] Each of these
petitions is an application for judicial review, and accordingly the relevant
procedure is regulated by chapter 58 of the Rules of the Court of Session 1994
(RC). This procedure was introduced in
response to remarks by Lord Fraser of Tullybelton in Brown v Hamilton District
Council 1983 SC (HL) 1 at page 49.
One of its main features is flexibility, so that a procedure may be
followed which is best suited to the requirements of a particular case. As Lord Hope of Craighead said in Davidson v Scottish Ministers (No 2) 2005 SC (HL) 7 at paragraph 73, "[t]he
whole point of judicial review procedure is that it is intended to eliminate
the procedural timetable which applies in the case of an ordinary action." The main provisions which are relevant for
present purposes are as follows. By RC
58.4 the court, in exercising its supervisory jurisdiction on a petition for
judicial review, may inter alia,
subject to the provisions of chapter 58, make such order in relation to
procedure as it thinks fit. By RC 58.7
the Lord Ordinary to whom the petition is presented on being lodged may make a
first order specifying inter alia such
intimation, service and advertisement as may be necessary, and a date for the
first hearing. RC 58.9 makes provision
for the first hearing. Paragraph (2)
thereof provides inter alia: "After
hearing the parties, the Lord Ordinary may ... (b) make such order for further
procedure as he thinks fit, and in particular may ... (i) adjourn or continue the
first hearing to another date; ... (v) order further specification in the
petition or answers in relation to such matters as he shall specify; ... (vii)
order any party who appears to lodge such documents relating to the petition
within such period as the Lord Ordinary shall specify; ... or (ix) order a second
hearing on such issues as he shall specify."
If evidence is to be led, this will be at the second hearing, for which
provision is made by RC 58.10. Reference
is also made in the Lord Ordinary's Opinion to RC 27.1, which, so far as
applicable to petitions generally, provides that any document founded on by a
party, or adopted as incorporated, in his pleadings shall, so far as in his
possession or within his control, be lodged in process as a production by him,
when founded on or adopted in a petition, at the time of lodging the petition,
and when founded on or adopted in an adjustment to the petition, at the time
when such adjustment is intimated to any other party. (It is not necessary for present purposes to
discuss the extent to which a document, such as a report, which has been lodged
as a production, may relevantly be adopted as incorporated in pleadings: see Eadie Cairns v Programmed Maintenance Painting 1987 SLT 777; The Royal Bank of Scotland plc v Holmes 1999 SLT 563 at page 570 G-I.)
[170] When the
provisions of chapter 58 are borne in mind, the procedure which has been
followed in the present cases has some unusual features. The petitions were lodged and first orders
pronounced on various dates from 30 August 2002 (Somerville) to 9 June 2004 (Henderson).
The first order in each case assigned a date for a first hearing. Initially, in Somerville's petition, after sundry procedure,
by interlocutor dated 19 February 2003, it was appointed that there be a
continued first hearing for a debate on the parties' pleas-in-law, excluding
only the question of quantification of damages.
That did not, however, take place.
By interlocutor dated 10 February 2004, on joint motion the diet of
continued first hearing which had been set down for 9 March
2004 was
discharged, and of consent the parties were allowed a proof before answer of
their respective averments. It is not
apparent from the interlocutor why a proof before answer, rather than a second
hearing, as provided by RC 58.9(2)(ix), was thought appropriate. What is clear is that from that point onwards
two things were happening: a proof before answer having been allowed,
preparations were being made for the lodging of productions and the leading of
evidence; but at the same time it was recognised that the pleadings were not
yet in final form, and that further adjustment would be required. On 12 March 2004 various interlocutors were
pronounced. In Somerville's petition, parties were allowed a
period to adjust their pleadings.
Meanwhile, there had been sundry procedure in Ralston's, Blanco's and Cairns's petitions, the first orders in
which were pronounced on 17 April 2003, 4 November 2003 and 11
November 2003
respectively. On 12
March 2004,
in each of these three petitions, parties were allowed a period to adjust their
pleadings, and were also allowed a proof before answer of their respective
averments. Finally, the first order in Henderson's petition was pronounced on 9
June 2004,
and at a first hearing on 30 June 2004, when answers had only just been
lodged, a period for adjustment and a proof before answer were both
allowed. By the latter date,
accordingly, the procedure in all five petitions was more or less in step. On that date also, a diet of proof before
answer was assigned for 26 October 2004 and the following five weeks. Much remained to be done before then,
however, as can be seen from the large number of interlocutors pronounced in
each petition after 30 June 2004, including those relating to the recovery of
documents by the petitioners. The point
was reached that on 15 October 2004 the parties had reached agreement
that the proof should not proceed; on joint motion the diet of proof was
discharged and instead the parties were allowed "a debate on the relevancy of
their respective averments and on any issues that arise from the granting of
any public interest immunity certificate".
[171] In each
petition a statement of fact is devoted to the "special or small units", as
they are termed, which were operated at HMP Barlinnie, HMP Perth, HMP Shotts
and HMP Peterhead between 1973 and 2001, which are said to have been "designed
specifically for the therapeutic management of long term 'difficult prisoners'
who had a consistent history of being unable to exist in full-time association
with other prisoners within the mainstream."
Since these units were closed, it is averred, the Scottish prison system
has had no provision for the proper management, control and support of
"difficult prisoners" other than to place them on Rule 80 segregation in cell
blocks and on a regime which is indistinguishable from that imposed for
punishment. This "punishment regime" is
alleged, inter alia, to have
"involved a disproportionate interference with the petitioner's rights under
Article 8 [of the Convention] to respect for his 'psychological integrity',
'personal development' and autonomy and self-determination and to his 'physical
and moral security'." Reference is made
in the course of this statement to a "report of Professor Andrew Coyle of
October 2004, the terms of which are held incorporated herein for the sake of
brevity". In another statement of fact
in each petition it is averred that "segregation involves four aspects which
are potentially harmful to psychological wellbeing, namely sensory deprivation,
physical constraint, social isolation and coercive control." After development of these averments,
reference is made (except in Henderson's petition) to "the report by
Professor David Canter environmental psychologist dated October 2004, the terms
of which are held incorporated herein for the sake of brevity". Finally, elsewhere in each petition (except
Henderson's), in a passage relating to prison conditions, reference is made to
"the Report by Professor Michael Corcoran on Conditions of Confinement in Seven
Scottish Prisons, and in particular the observations relative to HMP Glenochil,
which are held as incorporated herein brevitatis
causa."
[172] At the debate,
counsel for the Scottish Ministers took the opportunity to attack these
passages. In due course, in her
interlocutor of 8 February 2005, the Lord Ordinary inter alia excluded them from
probation. Her reasons for doing so
were, in brief: that the averments relating to the closure of the special or
small units were irrelevant to the issues raised, did not relate to any of the
declarators sought and were not reflected in any of the pleas-in-law; that the
averments regarding the effects of segregation were irrelevant because there
were no averments that any of the petitioners suffered any such harm; and that
since none of the three reports had been lodged as a production, there had been
a complete failure to comply with RC 27.1 and the relative averments did not
give fair notice of a relevant case. She
noted that there was scope for amendment of the petitioners' pleadings at a
later date "in the usual way".
[173] It is not clear
how much the Lord Ordinary was told about the reasons for the state of affairs
as it existed at the time of the debate.
What we have been told, however, is that Dr Erica Robb, a clinical
psychologist, had been instructed to prepare reports on the five petitioners,
assessing the degree to which they had each been psychologically damaged by the
segregation conditions complained of, and whether good psychological practice
would, in the circumstances of the individual petitioners, have dictated an
alternative way of treating them, other than by placing them in segregation
units. The pleadings could not be
finalised, and the other reports could not be finalised and lodged, until Dr
Robb's reports were available. She was,
however, for personal reasons which were explained to us but we need not
repeat, unable to prepare the reports in time for this to be done. This was the main reason for the discharge of
the diet of proof before answer.
[174] It is alleged
in the grounds of appeal for the petitioners that in excluding the above
averments from probation in each case the Lord Ordinary erred in law: she
appeared, it is said, to be proceeding under the misapprehension that she was
dealing with an action under ordinary procedure rather than an application for
judicial review. Before us, Mr O'Neill
did not suggest that, if these had been ordinary actions, the Lord Ordinary
would not have been justified in doing as she did. But, he submitted, since these were
applications for judicial review, there should have been further opportunity
for adjustment and a continued first hearing.
Mr Wolffe did not appear to us ultimately to take issue with this. He submitted that, with hindsight, the point
at which there should have been judicial management to resolve the problem was
before a proof before answer was allowed.
[175] While we are
prepared to accept that the Lord Ordinary misdirected herself by failing to
exercise a discretion appropriate to the procedural context of applications for
judicial review, as set out above, we have much sympathy for her. She acceded to the parties' motions to allow
a proof before answer, rather than a second hearing, and thereafter a debate,
rather than a continued first hearing, at a time when it was perfectly clear to
those representing the petitioners that the reports, and consequently the
pleadings, were incomplete. The better
course, and one consistent with chapter 58, would have been to continue the first
hearing, as many times as seemed necessary, until the parties were both in a
position to say that their pleadings were complete. At that stage an informed discussion could
have taken place to identify the issues which could be disposed of without further
inquiry, and those in respect of which a second hearing would be appropriate,
and to make orders accordingly. By
seeking a proof before answer, or more properly a second hearing, when they
did, the petitioners' representatives fashioned a rod for their own backs.
[176] For these
reasons, this ground of appeal is in our opinion well-founded.
Result
[177] For the
foregoing reasons, we shall: (1) in relation to statutory time-bar, recall head
1 of the Lord Ordinary's interlocutor dated 8 February 2005 in the petition at
the instance of Henderson in so far as she repelled the Scottish Ministers'
first plea-in-law and sustain said plea in so far as directed towards
Henderson's first four periods of segregation and exclude from probation
Henderson's averments in respect of said periods; (2) in relation to
proportionality, recall head 4 of the Lord Ordinary's interlocutor dated 8
February 2005 in each of the five petitions, and in lieu thereof exclude from
probation the words "disproportionate et
separatim" where they appear in Statement 3(a) in each petition, and repel
the first plea-in-law for each petitioner so far as relating to
proportionality; (3) in relation to the adequacy of reasons, (a) grant
declarator in the petition at the instance of Somerville that the Rule 80 (1)
order in respect of him dated 15 May 2002 does not comply with the requirement
of Rule 80(4)(c), and (b) exclude from probation (i) in the petition at the
instance of Somerville the averments relating to the order dated 18 July 2002,
(ii) in the petition at the instance of Blanco the averments relating to the
order dated 8 August 2002, (iii) in the petition at the instance of Ralston the
averments relating to the order dated 7 November 2002, (iv) in the petition at
the instance of Cairns the averments relating to the orders dated 9 October
2002, 21 November 2002 and 27 December 2002, and (v) in the petition at the
instance of Henderson the averments relating to the orders dated 8 October
2002, 9 January 2003, 14 June 2003 and 29 October 2003; and (4) in relation to
procedural and pleading issues, recall heads 8, 9 and 10 of the Lord Ordinary's
interlocutor dated 8 February 2005 in each of the petitions at the instance of
Somerville and Blanco and heads 10, 11 and 12 thereof in each of the petitions
at the instance of Ralston, Cairns and Henderson. Quad
ultra we shall adhere to the Lord Ordinary's interlocutor in each of the
five petitions. We shall remit each
petition back to the Lord Ordinary with a direction to hold a continued first
hearing in accordance with RC 58.9, and quoad
ultra to proceed as accords.
