On 15 December 2005, in the case of Davidson v Scottish Ministers, the House of Lords ruled that Scottish courts do have the power to make coercive orders against the Scottish Ministers requiring them to do, or not do, a particular action in judicial review proceedings.
Scott Davidson spent 18 months in Barlinnie prison where he complained about overcrowding, inadequate sanitary facilities and poor regime activities. He claimed that detention in such conditions breached Article 3 of the European Convention on Human Rights, as it was inhuman or degrading treatment. Mr Davidson sought a judicial review in the Court of Session in October 2001. Amongst other things, he sought an order requiring the Scottish Ministers to secure his transfer to prison conditions compliant with Article 3. His application was refused as the Lord Ordinary was bound by a previous decision of the Inner House of the Court of Session which provided that orders of interdict against the Crown were prohibited by the Crown Proceedings Act 1947 (the "Act"). Davidson's appeal to an Extra Division of the Court of Session was similarly dismissed. By the time Mr Davidson's further appeal had reached the House of Lords, he was out of prison but, nevertheless, sought clarity on the issue of coercive orders against Scottish Ministers.
It was held that, whilst the Crown Proceedings Act 1947 prevented Scottish courts from granting interdicts or orders for specific performance in some civil proceedings, it was not prevented in all civil proceedings. The question was: in which civil proceedings were courts allowed to grant interdicts or orders against the Scottish Ministers?
The Crown Proceedings Act does contain a definition of "civil proceedings", however it refers only to English proceedings and there is no equivalent definition for Scottish proceedings. The House of Lords therefore looked at the effect that the Act had in England and the situation in Scotland before the Act was brought into force to determine the scope of the limitation. The Court accepted that there was evidence that the Scottish courts had powers to make orders against Ministers of the Crown before the 1947 Act was introduced. The Court concluded that this, together with the lack of a Scottish-specific definition of "civil proceedings" demonstrating the extent of the limitation, combined to illustrate that it was unlikely that the drafters intended to remove an existing power from the Scottish courts without specifically stating that.
The Court considered that harmonisation was likely to be the underlying goal of the Crown Proceedings Act. Lord Roger of Earlsferry also looked at the phraseology of the Act and its interaction with the Scotland Act 1998 and concluded that Scottish courts were only prevented from granting interdicts or orders in private proceedings against the Crown. This judicial review was a public law matter and so it was held a coercive order could be made against the Scottish Ministers.
Ultimately, however, as Mr Davidson had been released before this decision was reached, the Court found that there was no need to grant the declarator sought.