DAVIDSON V SCOTTISH MINISTERS NO.2

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights; and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under article 3 of the European Convention on Human Rights (ECHR) (Prohibition of torture), which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so, citing that he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance, the Court of Session refused to issue orders against them, on grounds that section 21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

Crown Proceedings Act 1947

However, the court denied such an order, while the Extra Division followed suit for the same reasons, before the appellant was again denied recourse before the House of Lords; until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate; and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under section 38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus, the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity; whereupon, the House of Lords referred to Porter v Magill; in which, they had held that:

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

PORTER v MAGILL

And so, after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal, on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP, who was at the time, the Secretary of State for Scotland; and that Lord Hardie had merely been representative of those actions within his professional capacity, before clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE

Executive powers and national security form the footing of this call for judicial review under the argument that changes to civil servant working conditions were executed without due consideration of those affected.

In a relationship with a chequered history, it was decided by the Minister of the Civil Service (aka Prime Minister Mrs Thatcher) that since the previous strike actions of key staff within the Government Communications Headquarters (GCHQ) had proven destructive, it was necessary to execute instructions to ban any affiliation by government employees with trade unions of any sort.

While this unprecedented move was carried out under legitimate sovereign powers, it directly conflicted with the principle that governmental decisions were first offered to consultation with the trade unions as an inherent duty to exercise fairness when carrying out executive function.

On this occasion, the instructions were carried out under article 4 of the Civil Service Order 1982, but orally released within the House of Commons; and so greeted with natural anger and confusion, while the aim of this sudden prohibition was simply to circumvent open discussion in lieu of avoiding future strike actions now considered a significant threat to national security.

When heard at court level, the presiding judge had held that the instructions were issued on grounds demonstrating no effort toward consultation and were therefore invalid in their application.

Under challenge, the Court of Appeal had held that the executive action itself was not exempt from judicial review because the order came from prerogative powers rather than statute, and that despite the latter source forming the premise for most reviews, the Court saw no distinction between a self-executed order and that of an act of Parliament.

In response, the defence used by the Minister for the Civil Service relied upon operational safety measures, and how under those circumstances it was felt that the same people responsible for the previous compromises were right to be excluded from using consultation as leverage to create further damage; while it was further argued that any discussions between trade unions and Government would have amounted to the same outcome, regardless of protests by those affected. 

This position was further supported by the fact that sections (a) and (a)(ii) of article 4 of the Order in Council 1982 allowed the Minister to create regulations controlling the conduct of those employed, therefore denial of trade union membership lawfully fell within those remits.

When the Court upheld the Minister’s actions, the appellants pressed the issue, whereupon the House of Lords sought to establish whether judicial review was necessary, and whether the respondents had acted in manner that precluded fairness and a duty to follow precedent.

After which it was held that while the avoidance of discussion demonstrated a clear breach of that duty, it was not the responsibility of the courts to determine what constituted a threat to national security; and that the executive itself was empowered to prove or disprove itself as to its own actions; all of which, led the House to conclude that:

“[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence.”

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