(195)  Slopping out, judicial impartiality and ECHR

On 11 September 2002 the Second Division of the Court of Session ruled that the Extra Division which had pronounced in the case of Davidson v Scottish Ministers 2002 SLT 420 had not been apparently impartial as a result of the participation on the bench of Lord Hardie, and that this was contrary to article 6 of the European Convention on Human Rights.  In Davidson, a petition by prisoners in Barlinnie for interim orders of specific performance in judicial review proceedings against the Scottish Ministers, on the grounds that they were being detained in inhumane and degrading conditions contrary to article 3 ECHR, was held to be incompetent because under the Crown Proceedings Act 1947 as amended by the Scotland Act 1998 specific performance cannot be obtained against the Crown (see McDonald v Secretary of State for Scotland 1994 SC 234), which for these purposes includes members of the Scottish Executive. Lord Hardie as Lord Advocate had piloted the Scotland Bill through the House of Lords and had proposed the amendment which made members of the Executive officers of the Crown, while also rejecting as unnecessary a further amendment to protect the Executive from orders of specific performance.  It was held that the commitment to this view of the meaning of the Crown Proceedings Act which Lord Hardie had expressed in Parliament meant that he could not be objectively impartial in considering the question anew as a judge, and that the decisions in Davidson were accordingly vitiated.  The correct course for him would have been to disclose his difficulty at the outset of the case, to give the parties the opportunity to object.  The reclaiming motion was appointed to be re-heard.  Amongst other authorities the court refers to McGonnell v United Kingdom (2000) 30 EHRR 289 and Ex parte Pinochet [2000] 1 AC 119.  See Davidson v Scottish Ministers 2002 GWD 28-959.