Davidson (AP) (Original Respondent and Cross-appellant) v. Scottish Ministers (Original Appellants and Cross-respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Davidson (AP) (Original Respondent and Cross-appellant)
Scottish Ministers (Original Appellants and Cross-respondents)
THURSDAY 15 JULY 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Cullen of Whitekirk
LORD BINGHAM OF CORNHILL
That, it is agreed, is the test which must be applied to the facts of this case.
The second was on 2 November 1998 (HL Hansard, vol. 594, col. 105):
Whether the court could order the Scottish Executive to transfer Mr Davidson was, it will be recalled, the very issue which the Lord Ordinary and the Extra Division were called upon to decide.
The Court was unanimously of the same opinion (pp 307-308):
In a short separate opinion Sir John Laws (p 309) based his concurrence solely on the coincidence of the Bailiff's presidency over the States in 1990 and over the Royal Court in 1995.
This response was consistent with a response made by the Lords of Appeal in Ordinary to an invitation to publish a statement of the principles they intended to observe when participating in debates and votes in the House of Lords and when considering their eligibility to sit on related cases. On 22 June 2000, in the course of the Law Lords' collective reply, they stated (HL Hansard, vol. 614, col. 419):
He also held, in para 33:
But, relevantly to the present case, he also said:
On these facts the Board found no appearance of bias. Nor did it in the fact that the President had, when the statute was passed, been a Member of Parliament and Minister of Justice as well as Attorney General. The Board said (paras 13-14):
There are of course a number of entirely honourable reasons why a judge may not make disclosure in a case which appears to call for it, among them forgetfulness, failure to recognise the relevance of the previous involvement to the current issue or failure to appreciate how the matter might appear to a fair-minded and informed observer who has considered the facts but lacks the detailed knowledge and self-knowledge of the judge. However understandable the reasons for it, the fact of non-disclosure in a case which calls for it must inevitably colour the thinking of the observer.
LORD NICHOLLS OF BIRKENHEAD
LORD HOPE OF CRAIGHEAD
The Crown Proceedings Act 1947
The words which I have placed in square brackets at the end of the definition of "officer" were inserted by the Scotland Act 1998, section 125 and para 7 of Schedule 8. I shall have to return later to the circumstances in which this amendment came to be made in your Lordships' House during the passage of the Scotland Bill.
The Scotland Act Bill
It is reasonable to assume that this was a quotation from the brief provided to him, in accordance with the usual practice, by the parliamentary draftsmen. But it was obviously a statement about the government's policy.
Lord Mackay accepted Lord Hardie's explanation as to the effect of the 1947 Act and did not ask for this amendment to be voted on. The words "at present" which Lord Hardie used when he was describing its effect were, of course, well chosen and entirely accurate. The question had already been the subject of a decision in the Inner House: McDonald v Secretary of State for Scotland 1994 SC 234. But that was a case about the effect of the Act on proceedings in the sheriff court. The observations that were made about its effect on proceedings for judicial review in the Court of Session were obiter. Lord Hardie was making a statement about the present state of the law in Scotland.
The proceedings in the Court of Session
LORD CULLEN OF WHITEKIRK