Factual and Procedural Background
Appellant was detained in The Prison between April and October 2001. He alleged that the conditions of his detention breached Article 3 of the European Convention on Human Rights and, by petition for judicial review, sought (i) declarator that the conditions were unlawful, (ii) an interim and permanent order compelling Defendant (the Scottish executive authority) to transfer him to compliant conditions, and (iii) damages.
The Lord Ordinary (Judge Adams) refused interim relief, holding that section 21 of the Crown Proceedings Act 1947 (“the 1947 Act”) barred coercive orders against Defendant. Appellant reclaimed. The reclaiming motion was heard in November–December 2001 by an Extra Division comprising Judge White, Judge Green and Judge Black. On 18 December 2001 that court refused the reclaiming motion and, on 20 December 2001, refused leave to appeal to the House of Lords.
In May 2002 Appellant discovered that Judge Green, when Lord Advocate, had promoted amendments during passage of the Scotland Bill concerning the very effect of section 21. He petitioned the nobile officium, alleging apparent bias. On 11 September 2002 a Second Division (composed of Judge Gray, Judge Davis and Judge Clark) set aside the Extra Division’s interlocutors and ordered a rehearing before a differently constituted court, but refused Appellant leave to appeal on the substantive section 21 point.
Defendant appealed to the House of Lords. Appellant cross-appealed on the remedial order to seek direct leave to appeal to the House.
Legal Issues Presented
- Whether the Second Division was correct in holding that the Extra Division’s decisions were vitiated by apparent bias because of Judge Green’s prior ministerial involvement with section 21 of the 1947 Act.
- If the appeal failed, what procedural remedy should follow: a rehearing in the Inner House or a grant of leave to appeal directly to the House of Lords (cross-appeal).
Arguments of the Parties
Defendant’s Arguments
- Judge Green’s parliamentary statements were a bona fide exposition of orthodox Scottish law and did not evidence partiality.
- The fair-minded and informed observer would focus on the specific amendments discussed, which were different from the issue decided by the Extra Division.
- Comparative international jurisprudence (Pabla Ky v Finland) showed that a dual legislative–judicial role does not automatically create apparent bias.
Appellant’s Arguments
- Judge Green actively promoted legislation the effect of which was central to the litigation; a reasonable observer would see a real possibility of subconscious partiality.
- Lack of disclosure by Judge Green aggravated the appearance of bias.
- European authorities (Procola, McGonnell) demonstrate that prior legislative involvement in the same subject-matter can disqualify a judge.
- If bias were established, the appropriate remedy was direct leave to appeal so that the constitutional issue concerning section 21 could be resolved without further delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Porter v Magill [2002] 2 AC 357 | Test for apparent bias – “whether a fair-minded and informed observer would conclude that there is a real possibility of bias”. | Adopted as the governing test. |
| Locabail v Bayfield Properties [2000] QB 451 | Comparison of English and Scottish approaches to bias. | Affirmed that the Scottish formulation, now used in Porter, is authoritative. |
| Procola v Luxembourg (1995) 22 EHRR 193 | Appearance of bias where judges previously advised on legislation at issue. | Illustrative of risk when judicial and legislative roles overlap; relied upon. |
| McGonnell v UK (2000) 30 EHRR 289 | Violation of Article 6 where presiding judge had earlier legislative involvement in same matter. | Supported conclusion that prior promotion of legislation can taint impartiality. |
| Pabla Ky v Finland (2004) | Distinguished case where judge held no prior role in relevant legislation. | Cited to show factual limits of legislative/judicial overlap doctrine. |
| McDonald v Secretary of State for Scotland 1994 SC 234 | Scottish authority on section 21 barring coercive relief. | Referenced to show orthodoxy of Judge Green’s earlier view. |
| M v Home Office [1994] 1 AC 377 | English approach to injunctions against the Crown. | Contrasted with Scottish position under discussion. |
| Johnson v Johnson (2000) 201 CLR 488 | Significance of the judicial oath in bias analysis. | Used to temper, but not displace, appearance-of-bias concerns. |
| Kartinyeri v Commonwealth (1998) 156 ALR 300 | Recusal where judge had previously advised on issue. | Provided comparative common-law perspective. |
| Laird v Tatum 409 US 824 (1972) | U.S. statutory recusal framework. | Noted but found of limited assistance. |
| Panton v Minister of Finance [2001] UKPC 33 | Apparent bias where judge had earlier certified constitutionality of legislation. | Showed factual nuance required in bias assessment. |
Court's Reasoning and Analysis
1. Applicable Test. The House reaffirmed that the relevant inquiry is the Porter v Magill objective test. No allegation of actual bias was made; only appearance was in issue.
2. Nature of Judge Green’s Prior Involvement. While serving as Lord Advocate, Judge Green had piloted amendments to the Scotland Bill and expressly assured Parliament that, by virtue of section 21 of the 1947 Act, courts could grant only declaratory—not coercive—orders against members of the devolved executive. The litigation before the Extra Division concerned precisely that question.
3. Comparative Jurisprudence. The House examined European authorities. It considered Procola and McGonnell (where prior legislative activity led to a finding of bias) and distinguished Pabla Ky (where no such prior connection existed). The consistent theme: legislative involvement in the same subject-matter can undermine judicial impartiality.
4. Disclosure. Routine judicial practice encourages early disclosure of any potential disqualifying interest. Judge Green made no disclosure, a factor which the notional observer would weigh adversely.
5. Judicial Oath. While the oath is an “important protection”, it is not a complete safeguard; the informed observer would still harbour legitimate doubt.
6. Conclusion on Bias. Given the overlap between Judge Green’s prior ministerial assurances and the legal issue before him, the House held that a fair-minded observer would perceive a real possibility of unconscious bias. The Second Division therefore acted correctly in setting aside the Extra Division’s interlocutors.
7. Cross-Appeal Remedy. On remedy, the House recognised statutory limits: only the Inner House can grant leave to appeal under section 40 of the Court of Session Act 1988. It therefore remitted the question of leave back to the Inner House, signalling that the public importance of the section 21 issue warranted reconsideration.
Holding and Implications
Holding: The House of Lords DISMISSED the appeal by Defendant and, in line with the reasoning of Judge Jones and Judge Taylor, allowed the cross-appeal only to the extent of remitting to the Inner House the question whether leave to appeal on the section 21 issue should now be granted. Costs were awarded against Defendant.
Implications: The decision re-affirms the rigorous objective standard for apparent bias, emphasising that prior legislative promotion of a contested legal provision can compromise judicial neutrality in subsequent litigation. It underscores the importance of proactive disclosure by judges and clarifies procedural boundaries between the House of Lords and the Scottish courts when addressing interlocutory appeals. No new substantive precedent on section 21 was set; that constitutional question awaits determination in future proceedings.