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

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

Lord Hardie's active participation in the passage of the Scotland Bill, including proposing and advocating the relevant amendment to section 38(2) of the Crown Proceedings Act 1947 and expressing a view on the precise legal issue subsequently before the court, created an appearance of bias. Applying the objective test, a fair-minded and informed observer would conclude there was a real possibility of bias. Therefore, the interlocutors of 18 and 20 December 2001 are vitiated and must be set aside.

Citation
[2002] ScotCS 256
Parties
Petitioner: Scott Davidson; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
11 September 2002
Procedural Posture
Petition to the Nobile Officium of the Court of Session / Appellate Review of Interlocutors for Apparent Judicial Bias
Outcome
Petition allowed in part; interlocutors of 18 and 20 December 2001 set aside for apparent bias; reclaiming motion to be re-heard by a differently constituted Division; leave to appeal to the House of Lords refused.
Legal Topics
Judicial Impartiality, Apparent Bias, Recusal of Judges, Article 6 ECHR, Remedies Against the Crown, Supervisory Jurisdiction, Specific Performance, Declaratory Relief
Constitutional Law Administrative Law Human Rights Law Judicial Impartiality Apparent Bias Recusal of Judges Article 6 ECHR Remedies Against the Crown +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 26 Party arguments 2
Sign in to unlock

Parties

Scott Davidson

Petitioner

The Scottish Ministers

Respondents

Procedural Posture

Petition to the Nobile Officium of the Court of Session / Appellate Review of Interlocutors for Apparent Judicial Bias

Legal Issues

  1. 1 Whether Lord Hardie's prior involvement in the passage of the Scotland Bill and his statements regarding section 21 of the Crown Proceedings Act 1947 gave rise to apparent bias, vitiating the Extra Division's decisions
  2. 2 Whether the interlocutors of 18 and 20 December 2001 should be set aside for want of objective impartiality
  3. 3 What remedy should be afforded: leave to appeal or rehearing

Ratio Decidendi

Lord Hardie's active participation in the passage of the Scotland Bill, including proposing and advocating the relevant amendment to section 38(2) of the Crown Proceedings Act 1947 and expressing a view on the precise legal issue subsequently before the court, created an appearance of bias. Applying the objective test, a fair-minded and informed observer would conclude there was a real possibility of bias. Therefore, the interlocutors of 18 and 20 December 2001 are vitiated and must be set aside.

Court Disposition

Petition allowed in part; interlocutors of 18 and 20 December 2001 set aside for apparent bias; reclaiming motion to be re-heard by a differently constituted Division; leave to appeal to the House of Lords refused.

Orders

  • Set aside interlocutors of 18 and 20 December 2001
  • Repel pleas-in-law for the respondents