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CHAPTER 2 Statutory and Case Law Background

2.1 Although much of what follows in this Chapter is well known, it is nonetheless helpful to remind ourselves at the outset of the general background against which ministerial decision making takes place. I am, of course, conscious of the fact that my terms of reference refer to the management of "individual" offenders. However, it is clear from some of the decided cases that decisions of a general kind (including failures to take decisions in certain circumstances) can have an impact on individual offenders; ⁴ and it is for that reason that I have considered it appropriate to give some attention to what I have called the "general background". In part that background is to be found in statute, and in part it is to be found in the decisions, particularly recent decisions, of the Court of Session, the High Court in England, and the House of Lords. It is also, of course, to be found in the practices which have been followed for a great many years by the Parliaments and legislators at Westminster and, more recently, at Holyrood.

The statutory background

2.2 For many years it has been common-place (I have not been able to discover for how many years) for statutes to confer decision making powers on a Minister or Ministers. In pre-devolution days statutes often conferred such a power on "the Minister", which usually meant the Minister in charge of an English or, in some instances, a United Kingdom department, whereas, in statutes affecting Scotland alone, the power was usually conferred on "the Secretary of State".

2.3 All of that, of course, changed with the coming into force of the Scotland Act 1998. Section 44(1) of that Act provides:

"There shall be a Scottish Executive, whose members shall be -

1. (a) the First Minister,
2. (b) such Ministers as the First Minister may appoint under section 47, and
3. (c) the Lord Advocate and the Solicitor General for Scotland."

Subsection (2) of section 44 goes on to provide that: "The members of the Scottish Executive are referred to collectively as the Scottish Ministers." Also of note in this context is section 52(3) of the Act which provides:

"Statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Executive."

Taken as a whole, the foregoing provisions appear to indicate clearly that, while statutory decision making may be undertaken by a single Minister, any such decisions will in effect be made on behalf of the Scottish Executive, or "the Scottish Ministers", in a corporate capacity. Thus, as will be seen later, ⁵ the Scottish Ministers in that corporate capacity can be found guilty of contempt of court notwithstanding that the contempt has in fact been committed by an official who is answerable to an individual Minister.

2.4 Reference should also be made here to section 117 of the Scotland Act which provides:

"So far as may be necessary for the purpose or in consequence of the exercise of a function by a member of the Scottish Executive within devolved competence, any pre-commencement enactment or prerogative instrument, and any other instrument or document, shall be read as if references to a Minister of the Crown (however described) were or included references to the Scottish Ministers."

The main effect of this provision is, of course, that references to "the Secretary of State" in pre-devolution statutes which are still in force are now to be read as references to the Scottish Ministers. There are many such statutes which are still in force and, for present purposes, the Prisons (Scotland) Act 1989 and the Prisoners and Criminal Proceedings (Scotland) Act 1993 may be cited as but two examples. Post-devolution statutes simply confer any decision making functions on "the Scottish Ministers".

2.5 Reference should also be made to section 51(1) of the Act which provides:

"The Scottish Ministers may appoint persons to be members of the staff of the Scottish Administration."

This provision is mentioned because, as will be seen later in this Chapter, the nature of the relationship between the Scottish Ministers and civil servants in the Scottish Administration has on occasions come under scrutiny by the courts.

2.6 Finally, in this brief survey of relevant statutory provisions, reference should be made, firstly, to section 57(2) of the Scotland Act which provides:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."

Two comments may be made here. First, it is useful to bear in mind that, in terms of section 21(1) of the Human Rights Act 1998, an Act of the Scottish Parliament is regarded as subordinate legislation. Consequently, the reference to "subordinate legislation" in section 57(2) includes what, in a purely Scottish context, would be regarded as primary legislation. Second, the term "Convention rights", as used in the Scotland Act, has the same meaning as in the Human Rights Act 1998, ⁶ and is a reference to the rights created and conferred under the European Convention on Human Rights. Consideration of section 57(2) of the Scotland Act has featured in many of the cases which have recently come before the Court of Session and the House of Lords.

2.7 Secondly, it is to be noted that a provision which is somewhat similar to that in section 57(2) of the Scotland Act is to be found in section 6(1) of the Human Rights Act 1998. That subsection provides:

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

The relationship between section 6(1) of the Human Rights Act and section 57(2) of the Scotland Act has been considered in one of the cases to which I now turn. ⁷ It should also be noted at this stage, however, that "act" as used in section 6(1) of the Human Rights Act includes, by virtue of section 6(6), a failure to act. Section 57 of the Scotland Act does not contain a provision to that effect, but it is at least possible that the word as used in that statute would be interpreted in the same manner.

Relevant case law

2.8 For many decades it has been judicially recognised that, where a statute confers a decision making function on a Minister, it will often be impracticable for the Minister concerned to take the decisions in person, with the consequence that those decisions are made by an official in the relevant department. This judicial approach was first enunciated in 1943 in the English case of Carltona Limited v. Commissioners of Works.⁸ Since 1943 the approach taken in that case has come to be known as "the Carltona principle" or "the Carltona doctrine". Since it is of central importance to many of the matters considered later in this report, it is useful to set out in full that part of the judgment of Lord Greene MR in which he explained the principle or doctrine. It is to be found at page 563 of the law report where the Master of the Rolls said:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the Minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

Given the number of references in the foregoing passage to answerability to Parliament, it is worth bearing in mind that, in 1943, when Lord Greene was delivering judgment, the procedure of judicial review was unknown both in England and Wales and in Scotland. Now, of course, the procedure of judicial review has introduced a means whereby Ministers can be made answerable to the courts as well as to Parliament.

2.9 Although Carltona was an English case, decided in the Court of Appeal in London, the principle or doctrine which it enunciated appears to have been judicially accepted in Scotland for many years. Thus, in H M Advocate v. Copeland and Others⁹ (a criminal case where a question arose as to an extension of the period when the accused could be detained under section 12(4) of the Prevention of Terrorism (Temporary Provisions) Act 1984) Lord Jauncey, in delivering the Opinion of the Criminal Appeal Court, said:

"A line of authority, starting with Carltona Ltd v. Commissioners of Works and ending with a decision by Brightman J., as he then was, in In re Golden Chemical Products Ltd [1976] Ch 300, establishes to our satisfaction that there is no obligation on the Minister to exercise his powers personally even when those powers involve a serious invasion of the freedom or property rights of the subject."

The foregoing passage in Lord Jauncey's Opinion has been quoted with approval in several subsequent cases in Scotland.

2.10 A number of more recent cases require mention. In Davidson v. The Scottish Ministers¹⁰ the petitioner complained, by way of judicial review, that the sanitary conditions which he had to endure in prison amounted to inhuman or degrading treatment contrary to Article 3 of the ECHR. The legal basis for the action was that the general superintendence of prisons is vested in the Scottish Ministers under section 3(1) of the Prisons (Scotland) Act 1989. Consequently, it was alleged, by providing inadequate prison conditions the Scottish Ministers had acted unlawfully within the meaning of section 6 of the Human Rights Act 1998 ¹¹ and had, in addition, exceeded their powers within the meaning of section 57(2) of the Scotland Act 1998. ¹² The appeal to the House of Lords was concerned solely with the question whether in Scotland, as opposed to the position in England, an order for interdict against the Crown was prohibited by the terms of section 21 of the Crown Proceedings Act 1947. Such a prohibition had been upheld by the Inner House of the Court of Session in 1994; ¹³ but the House of Lords held that that case had been wrongly decided, and that coercive remedies available in judicial review proceedings are the same in both countries. In passing, it should be noted that this was a case which effectively involved a failure to act in that the Scottish Ministers had not taken any steps to improve the sanitary conditions which were the subject of complaint.

2.11 The English case of R. (ex parte Clift) v. Secretary of State for the Home Department¹⁴ requires mention because it bears directly on the nature of ministerial decision making. The case was concerned with alleged anomalies in the English procedures for the release of certain long-term prisoners whereby the Minister retained a power to direct release rather than that being done by the Parole Board. The petitioners were partly successful; but what is of particular interest for present purposes are certain comments made in the speech delivered by Lord Bingham of Cornhill when the case came before the House of Lords. Dealing with the differential treatment in relation to release with which the case was concerned, Lord Bingham said (at para. 33):

"The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise."

Lord Bingham returned to the matter of "political content" a little later when (at para. 38, in relation to another of the petitioners) he said: "The decision in question is not a political decision, appropriate to be made by a minister". None of the other members of the House dissented from what was said in these passages, and accordingly it may be taken that, in respect of matters relating to the release of prisoners, ministerial decision making can be justified only where the decisions have a "political content". This case has already led to a change in practice in Scotland in respect of the release of prisoners facing deportation; ¹⁵ and it may also have implications for the operation of the Custodial Sentences and Weapons (Scotland) Act 2007. I consider that in detail later when I come to examine the 2007 Act. ¹⁶

2.12 The next Scottish case to require mention is Beggs v. The Scottish Ministers.¹⁷ That was a case which concerned the opening by prison staff of letters sent to a prisoner from the Independent Prisons Complaints Commissioner. At an early stage in the proceedings the Scottish Ministers gave an undertaking that this practice would not continue, but that undertaking was breached at Peterhead Prison, apparently as a result of a deliberate decision on the part of the Governor not to inform the relevant prison officers about the content of the undertaking. Steps were taken on behalf of the petitioner to bring this to the attention of the court with a motion "to ordain the Scottish Ministers to appear personally to answer their breach … and to find the Scottish Ministers in contempt of court". In due course the First Division of the Court of Session pronounced an interlocutor in which, having concluded that it was unnecessary to order the personal appearance of a Minister or Ministers, they ordered the attendance of the Chief Executive of the Scottish Prison Service and the Governor of Peterhead Prison. These persons duly appeared as ordered, and the Court then found the Ministers in contempt of court, and found them liable in expenses. The Court also granted leave to appeal to the House of Lords.

2.13 Originally, it had been the intention of the Scottish Ministers to argue before the House of Lords that it was not within the power of the Court to make a finding of contempt against the Ministers but, by the time of the hearing, the decision of the House of Lords in Davidson¹⁸ had been issued. Consequently, the appeal hearing was concerned only with the order for the personal attendance of the Chief Executive and the Governor. On that point the House concluded that there had been serious irregularities in the manner in which the First Division had made that order, and the appeal was allowed. However, two comments made in the course of reaching that decision are worth noting. At para. 38 of his speech Lord Rodger of Earlsferry said:

"Once the Division had decided that the Ministers were in contempt of court, it was for their Lordships to decide the appropriate way to deal with the situation. Having decided not to impose a penalty, they could none the less have decided to order the Ministers, or one of them, to appear personally, as the respondent had craved. But they judged that this more serious step was unnecessary and that it would be enough if the Ministers were represented by an appropriate official when the judgment of the court was announced. That was a step which they were, in principle, entitled to take having regard to the position of ministers and civil servants as identified in Carltona and subsequent decisions. But the way the First Division went about it was inappropriate and produced unfortunate results."

It is implicit in the above passage that Ministers can be found to be in contempt of court and that, in such a case, it is open to a court to ordain personal appearance by a Minister or Ministers but that, as an alternative, the court may order appearance by "an appropriate official". Lord Hope of Craighead elaborated on this in paras. 8 and 9 where he said:

"… the status of civil servants is different from that of employees or agents of a body such as a company or a trade union. Civil servants are servants of the Crown, not of the ministers who are answerable to Parliament for the departments in which they serve: see Carltona. The status of civil servants in Scotland was not affected by the devolution settlement. The Scottish Ministers are answerable to the Scottish Parliament, and to the court for any undertakings that they may give or any peremptory orders that may be made against them, and for the actions of officials within the various branches of the Scottish Executive. But the officials are not their servants or agents. It is the fact that they perform their functions under direction and control of the Scottish Ministers that makes the Scottish Ministers answerable for what they do or fail to do. Ministerial responsibility for acts and failures of civil servants in their departments cannot be delegated. So where an undertaking is given such as that by the Scottish Ministers in this case, responsibility to the court for its observance is that of the Scottish Ministers, not of the officials or other civil servants within the Scottish Executive. It is the Scottish Ministers, not the civil servants, who are responsible for any breach of the undertaking."

2.14 Another case to merit some attention is Potter v. The Scottish Ministers.¹⁹ That is a case in which the petitioner seeks to challenge an arrangement whereby outgoing telephone calls by a prisoner are preceded by a pre-recorded message advising the recipient of the call that it is coming from a prison. This was said to be contrary to section 6 of the Human Rights Act 1998 and Article 8 of the ECHR. For the Scottish Prison Service (who were named as respondents at first instance) it was maintained that the power to make such an arrangement was to be found in rule 54(2) of the 1994 Prison Rules (now rule 62(2) in the 2006 Rules). That rule provides that a prisoner's entitlement to the use of a telephone is to be subject to the provisions of any direction which the Secretary of State (now the Scottish Ministers) may make in relation to certain matters. In the present case the relevant direction was signed by an official in the Scottish Prison Service. At the end of the day, the Lord Ordinary found that the practice was unlawful. However, the Scottish Ministers appealed against that decision, and in due course the First Division of the Court of Session held that the Lord Ordinary's disposal of the case had been premature in the absence of hearing evidence on certain disputed matters of fact. The case was therefore remitted back to the Lord Ordinary for further procedure. In those circumstances, its final outcome remains to be seen.

2.15 The next case in this survey of recent case law is, as it was named at first instance, D.B. v. The Scottish Ministers²⁰ or, as it came to be known on appeal, XY v. The Scottish Ministers.²¹ That was a case in which a challenge was presented to the lawfulness of a decision by the Scottish Ministers to recall the petitioner to prison, and to revoke his licence, all in terms of section 17(1)(a)(ii) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The background to the case is to be found in section 3(1) of the Representation of the People Act 1983 which provides:

"A convicted person during the time he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government elections."

Following on a decision by the European Court of Human Rights in Hirst v. UK (No 2)²² the Registration Appeal Court, in Smith v. Scott,²³ declared that section 3(1) of the 1983 Act is incompatible with Article 3 of the First Protocol to the ECHR. Against the foregoing background the petitioner, who was registered to vote, and who expressed a desire to vote in the (then) forthcoming elections to the Scottish Parliament to be held on 3 May 2007, maintained that the Scottish Ministers had acted unlawfully in recalling him to prison in advance of that date, and in revoking his licence. That argument was rejected both at first instance and on appeal before the First Division.

2.16 The case of Somerville and Others v. The Scottish Ministers ²4 is one of some significance and interest. It in fact consists of five separate petitions for judicial review which, from an early stage, have been conjoined, and thus have been heard together. The petitioners were each convicted of serious crimes and sentenced to long periods of imprisonment or detention. While in custody each was, for a period or for a number of distinct periods, removed from association with other prisoners ("segregated") in implement of orders purportedly made under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. ²⁵ The petitions challenge the lawfulness of those segregations on a number of grounds, and awards of damages are sought.

2.17 Before the Lord Ordinary a number of preliminary issues were argued and, after she had given her decision on those matters, both the petitioners and the Scottish Ministers took appeals and cross-appeals which were in due course heard by the First Division of the Court of Session. The issues which were raised, and discussed, in the hearing before the Division were (a) recovery of documents and Public Interest Immunity; (b) statutory time-bar; (c) mora; (d) the Carltona doctrine; (e) proportionality; (f) adequacy of reasons; and (g) certain procedural and pleading issues. The First Division's decision on those matters was issued on 3 November 2006, and thereafter both the petitioners and the Scottish Ministers appealed to the House of Lords. The hearing before the Lords took place in early July 2007, and it was mainly concerned with issues (a), (b), (e) and (f). In relation to head (b) - statutory time bar - much of the discussion centred on the relationship between the Scotland Act 1998 and the Human Rights Act 1998.

2.18 For present purposes, the issue of particular interest in this case was the Carltona doctrine which was of significance in that, in respect of all the petitioners, the periods of removal from association to which they were subjected were extended, not by the Scottish Ministers, or one of them, in person, but by various officials in the Scottish Prison Service. At first instance, the petitioners advanced a number of arguments in respect of the applicability of the Carltona doctrine. First, they argued that the doctrine does not apply at all in the case of the Scottish Ministers since they are creatures of statute, not Ministers of the Crown answerable to the Westminster Parliament. Second, it was submitted that, in any event, the making of orders under Rule 80(5) and (6) was not something which could be delegated given the nature and importance of the decision making involved. It was also submitted that, even if the Carltona doctrine applied so as to enable the orders in question to be granted by departmental officials, the individuals concerned should be properly authorised within the department. The Lord Ordinary rejected all of these submissions. In particular, she rejected the concept of 'delegation' and described the Carltona doctrine (at para. [76]) as involving "the Minister acting through civil servants who are his alter ego in all respects and upon whom there need not even have been express authority conferred". More generally in relation to specific authorisation, the Lord Ordinary observed that, in the petitions before her, there were no averments which attacked the suitability or competence of any of the signatories so as to support a claim for judicial review on the basis that the Scottish Ministers had acted improperly or unreasonably in allowing those persons to grant the orders on their behalf.

2.19 At the appeal hearing before the First Division the petitioners did not renew the contention that the Carltona doctrine does not apply at all in the case of Scottish Ministers. However, they maintained that the Lord Ordinary had been in error in rejecting their other submissions; and, in particular, they argued that the rules in question had in effect authorised the Scottish Ministers themselves to exercise the functions there conferred on them. Having made rules which conferred those functions on themselves, the Ministers could not derogate from the rules by authorising some other person or persons to exercise them. The First Division rejected the arguments advanced on behalf of the petitioners, largely for the reasons given by the Lord Ordinary. However, it is of interest to note that, having done so, the Division went on to say (at para. [103]):

"Particular challenges might be made on Wednesbury grounds (for example where a 'tea lady' purports to authorise an instrument of state) but no such challenge is made to any of the decisions in the present petitions …… Nor do the petitioners positively assert that any of the decisions were in fact made by a person unsuited by grading or experience to make them."

This passage suggests that the suitability, in terms of grading or experience, of an official who is making decisions in the name of the Scottish Ministers potentially remains a live issue were a case in the future to focus the matter in an appropriate and sufficient manner.

2.20 Leave to appeal to the House of Lords in relation to the Carltona doctrine was refused. Consequently, the applicability of that doctrine in relation to the Scottish Ministers has not as yet been given detailed scrutiny by the House. However, an acceptance of its applicability is implicit in some of the things that have been said in other cases which have been decided there. ²⁶

2.21 At the time of writing this report the judgment of the House of Lords is still awaited. It may be that it will contain some important observations on the matter of ministerial decision making, and it will therefore repay close attention. ²⁷

2.22 Finally, mention must be made of some English cases. The first is one in which judgment was given by the Divisional Court on 31 July 2007. That is the case of Wells and Walker v. The Parole Board and the Secretary of State for the Justice Department.²⁸ Both of the claimants had been convicted of serious offences, and each had been sentenced, under section 225 of the Criminal Justice Act 2003, to what is known as imprisonment for public protection (" IPP"). In terms of that Act, IPP is a sentence of imprisonment for an indeterminate period, but it is not a conventional life sentence. I shall come in a moment to describe some of the complex statutory provisions which surround IPP but, for the present, it will be helpful to set out, briefly, the nature of the claimant Walker's case. The case of Wells was similar, but not identical.

2.23 In outline, Walker's case was that he had not been afforded proper opportunity to undertake offender behaviour work or courses in the prison, and for that reason his ability to demonstrate to the Parole Board that he was safe to be released on licence into the community at the expiry of what is called the tariff element of his sentence had been reduced or eliminated. In those circumstances it was said that he had been treated unreasonably or irrationally at the hands of the Secretary of State.

2.24 To better understand the nature of that complaint it is necessary to look at the statutory framework which surrounds IPP. There is also a further reason for considering that framework in a little detail, and that is because, as will be seen, some of the provisions are not dissimilar to those which are to be found in Part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007.

2.25 Section 225 of the Criminal Justice Act 2003 provides in part:

"(1) This section applies where -

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this Act, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If -

(a) the offence is one for which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences."

In connection with the above, it should also be noted that section 224(3) of the 2003 Act defines "serious harm" as meaning "death or serious personal injury, whether physical or psychological". Given that "risk of serious harm to members of the public" is a key feature of the Custodial Sentences and Weapons (Scotland) Act 2007, the statutory definition in the English legislation is not without interest.

2.26 The relevant provisions of the 1997 Act are complex, but their general effect appears to be that, where IPP is ordered by the court, a minimum custodial term (the 'tariff' element) must be specified, and that minimum term must be such as the court considers appropriate taking into account "the seriousness of the offence, or the combination of the offence and one or more offences associated with it." Once the minimum term has been served the Parole Board must consider whether to give the Secretary of State a direction requiring the immediate release on licence of the offender. However, it must not give such a direction unless it is satisfied that it is "no longer necessary for the protection of the public that the prisoner should be confined". The Secretary of State may also give directions to the Board as to matters to be taken into account; and in giving such directions, the Secretary of State must have regard to, among other things, "the need to protect the public from serious harm from offenders". It is implicit in the relevant provisions that an offender who has been sentenced to IPP will require to satisfy the Parole Board, at the conclusion of his minimum term, that he no longer poses an unacceptable risk, and that he could be safely released back into the community. It is also implicit in the surrounding practice directions, and indeed in the declared policy of the Secretary of State, that IPP prisoners should have the opportunity to participate in appropriate courses during the running of the minimum period so as to enable them to satisfy the Parole Board on the question of risk.

2.27 In the present cases, Walker's tariff, or minimum period, had been set at 18 months while, in the case of Wells, the period was 12 months. Since the date of sentence, Walker had been detained at HMP Doncaster where there were little or no resources for offending behaviour work, and as a consequence he had no opportunity to undertake programmes or courses such as might enable him in due course to demonstrate to the Parole Board that the risk he posed to the public had been extinguished or at least substantially diminished. In the case of Wells, his tariff period had expired on 17 September 2006, but the first review of his case by the Parole Board was not scheduled to take place until 25 October 2006. On that date his dossier had not been made available from the prison where he was detained. It was only received by his solicitor and the Home Office on 9 November 2006, and thereafter Parole Board hearings were arranged for 18 January and 29 March 2007. However, both of these hearings had to be postponed because insufficient Parole Board members were available to sit at the prison on either of those dates. Judicial review proceedings were then commenced but, on 9 May 2007, the case was finally reviewed by the Parole Board which declined to direct release, in part on the basis that Wells had not undertaken any offence-focused work since no appropriate courses were available in the prison where he was detained. In the foregoing circumstances the Divisional Court granted the applications for judicial review. In doing so, Laws LJ said (at para 48):

"The Crown has obtained from Parliament legislation to allow … the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released. Accordingly there must be material at hand to show whether the prisoner's further detention is necessary or not. Without current and periodic means of assessing the prisoner's risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner's further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful."

2.28 In the cases of Walker and Wells no order for their immediate release was made by the Divisional Court because, in the case of one of the claimants, his minimum period of custody had not expired, and in the case of the other claimant his potential release had ultimately been considered and refused by the Parole Board. However, immediate release was ordered by Collins J. in the subsequent High Court case of James v. Secretary of State for the Justice Department. ²⁹ That case also involved a prisoner who had been sentenced to IPP and who, like Walker, had been detained at HMP Doncaster. His complaint, like Walker's, was that he had not been afforded access to any courses or programmes which might have enabled him to satisfy the Parole Board that he could with safety be released. The case of James was heard by Collins J. only a short time after the Divisional Court had issued its judgment in the cases of Walker and Wells and, not surprisingly, that judgment was considered with care in the subsequent case. Collins J. accepted the reasoning set out by the Divisional Court, and went on to say:

" …. the difficulty as I see it is that if the failures are, as the Divisional Court indicated, such as to be unlawful then it must be recognised that the consequences are truly, in one sense, disastrous, because I think it is inevitable logic following from what Laws LJ has indicated that a prisoner such as the claimant - and one can possibly limit this to short tariff lifers in the hope that the longer tariff ones will have had the opportunity to engage in the necessary courses - will have to be released whether or not he remains a risk to the public. That is, to say the least, an undesirable effect of the failure by the executive to provide the necessary resources to enable the purpose that lies behind the IPP properly to be fulfilled."

Following on the issue of judgment in this case the Secretary of State immediately marked an appeal, and in that situation Collins J. suspended his order for immediate release pending the hearing of the appeal. However, he went on to suggest that this appeal might be heard simultaneously with the appeal in the cases of Walker and Wells, and he expressed the hope that the Court of Appeal would be able to deal with the matter as one of urgency.

2.29 Mention should also be made of R (Gulliver) v. The Parole Board,³⁰ a case in which the judgment of the Court of Appeal was issued on 4 July 2007, but not published until 20 August 2007. The claimant had been released on licence from a three year sentence of imprisonment but, only seven days later, he was recalled by the Secretary of State because of a breach of his licence conditions. As I understand it, recall arrangements in England and Wales are similar to those provided for in the Custodial Sentences and Weapons (Scotland) Act 2007 in that recall can be ordered by the Secretary of State but must then be considered by the Parole Board. In the Gulliver case the Parole Board found that the claimant had not been in breach of his licence conditions but, having regard to the whole circumstances, they concluded that he should not be at liberty and should continue to be detained until he had served three quarters of his sentence. That decision was challenged on the basis that the Parole Board's function was limited to reviewing the ground on which the Secretary of State had ordered recall, and that they were not entitled to consider other, or wider, grounds which might justify continued detention. The Court of Appeal held that the Parole Board had not erred in taking that wider view. In that connection it should be noted that, in this case, the claimant had been released automatically on licence after serving one half of his sentence. ³¹ Consequently, there had been no review of his case by the Parole Board at that stage.

2.30 Finally, mention must be made of Brooke and Others v. The Parole Board and the Minister for Justice,³² a case in which judgment was delivered by the Divisional Court on 7 September 2007. This case involved a number of applications for judicial review in which the claimants contended that the Parole Board for England and Wales does not sufficiently enjoy the independence which is the essential hallmark of a court. In a very careful judgment in which regard was had to the position of the Parole Board in Scotland, and to a number of Scottish cases concerned with the impartiality and independence of the judiciary, ³³ the Divisional Court concluded that "the present arrangements for the Parole Board do not sufficiently demonstrate its objective independence of the Secretary of State, as required by both English common law and Article 5(4) ECHR". ³⁴ I understand that the Secretary of State has now marked an appeal against this judgment. I shall consider the reasoning of the Divisional Court, and its possible implications for the position of the Parole Board in Scotland, when I come to analyse the provisions of the Custodial Sentences and Weapons (Scotland) Act 2007 in Chapter 4.

General comments

2.31 The recent case law which has been summarised above indicates clearly that there are many circumstances in which ministerial decision making may be open to challenge in the courts: and it must be supposed that there may be many more challenges in the future. Moreover, the Scotland Act and the Human Rights Act have, taken together, created a complex constitutional framework within which ministerial decision making must take place and, ultimately, be judged. This is a background which must be kept in mind at all times when ministerial decision making is taking place both now and in the future. With that thought in mind I now turn to consider specific examples of decision making which take place at present; and thereafter, in Chapter 4, I shall consider in detail the provisions in the Custodial Sentences and Weapons (Scotland) Act 2007, and how the various forms of ministerial decision making which are provided for in that statute may meet the tests which have been applied hitherto, and which may be applied in the future.

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