Playing politics with the Scottish constitution
The fuller version of the article in Journal, May 2009, 22: Why the measures to limit prisoners' rights are not the best way to achieve reform
Somerville & Ors v Scottish Ministers 2007 SC 140; 2008 SC (HL) 45 was decided by the House of Lords in October 2007. In this decision the House of Lords reversed the First Division and confirmed the February 2005 decision of the Lord Ordinary (Lady Smith) to the effect that there existed no statutory time limit applicable to court actions brought against the devolved institution in Scotland in respect of “acts” which were beyond their competence.
This decision was unsurprising. Scots law has long confirmed that ultra vires acts are void and have no legal effect. As Lord Rodger of Earlsferry had earlier observed:
“[W]henever a member of the Scottish Executive does an act which is incompatible with Convention rights, the result produced by all the relevant legislation is not just that his act is unlawful under section 6(1) of the Human Rights Act. That would be the position if the Scotland Act did not apply. When section 57(2) [SA] is taken into account, however, the result is that, so far as his act is incompatible with Convention rights, the member of the Executive is doing something which he has no power to do: his act is, to that extent, merely a purported act and is invalid, a nullity. In this respect Parliament has quite deliberately treated the acts of members of the Scottish Executive differently from the acts of Ministers of the Crown.” (R v HM Advocate 2003 SC (PC) 21 at 64.)
It would be surprising instead if such void “purported actions” could nonetheless become unchallengeable simply by the passage of time. In 1998, during the passage of the Scotland Bill through Parliament, the fact of the lack of any time limits applying to competency challenges to acts of the devolved institutions was specifically drawn to Parliament’s attention. Lord Hope of Craighead, speaking in his capacity as a member of the legislature, told the House of Lords as follows (Hansard, 17 June 1998, col 1638):
“One has only to look at the devolution issues listed in paragraph 1 of Schedule 6 to see the scope which will exist for challenges to be made. No time limit is set for the making of those challenges. As has been pointed out by several noble Lords, there is to be no revising chamber. So in theory at least - I stress the word theory - subject to the exercise of the powers given to the court in section 93 to vary retrospective decisions, legislation by the Scottish Parliament could be set aside as not being within that Parliament's competence long after it had been put into effect. In the wrong hands that could be very damaging.”
The Scottish Government has long made plain its unhappiness with the decision of the House of Lords in Somerville. In a briefing note for journalists on the implications of the decision (“Somerville: time bar on human rights actions against Scottish Ministers”, 11 March 2009, at para 7) it made the following claims:
“The House of Lords ruled that no one-year time-bar applies to Scottish Ministers because of the wording of the Scotland Act. The practical effect is that the Scottish Government is exposed to tens of thousands of potential claims from prisoners for compensation for being held in slopping-out conditions. By contrast, every other public authority in Scotland, and virtually every public authority in the UK, including the UK Government, can rely on the one-year time bar when faced with human rights based claims.”
Public law damages
As a general rule, clearly established in English law, a breach of a public law right of itself gives rise to no claim for damages (X (Minors) v Bedfordshire County Council  2 AC 633 per Lord Browne-Wilkinson at 730F-731B). Instead damages for loss caused by ultra vires acts could only be recovered at common law on the basis of first establishing an ordinary claim in tort arising from the circumstances of the case. And Lord Hope has stated that in Scots law too, “the fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified”: Somerville v Scottish Ministers, 2008 SC (HL) 45 at 57, para 19, relying upon Stair Memorial Encyclopaedia, vol 1, para 333 and on F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry  AC 295, per Lord Wilberforce at 359H .
But statute now expressly provides that the actions or omissions of a public authority which are incompatible with Convention rights may give rise to an award of damages if “taking into account the principle applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention... the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made”: Human Rights Act, section 8(3) and (4); Scotland Act, section 100(3). Such awards of “just satisfaction” damages do not constitute private law damages awarded by way of reparation in respect of a tort or delict recognised in private law: Attorney General of Trinidad and Tobago v Ramanoop  AC 328, per Lord Nicholls at paras 18-19. Instead they are public law damages awarded by way of constitutional redress, in part to vindicate the importance of the fundamental right which state-sanctioned action has called into question: see Maharaj v Attorney General of Trinidad and Tobago (No 2)  AC 385 (PC), per Lord Diplock at 398, 399, 400; and Subiah v Attorney General of Trinidad and Tobago  UKPC 47, per Lord Bingham of Cornhill at para 11.
Public law just satisfaction damages differ from private law reparation damages in the nature of the harm which is recognised to sound in damages. Material harm has to be established before private law damages might be awarded (Rothwell v Chemical & Insulating Co Ltd and another  1 AC 281), whereas just satisfaction awards in respect of Convention rights breaches may be made in respect of presumed “moral damage” for anxiety or distress (see Romanov v Russia (2007) 44 EHRR 23 at para 117, and Kyriakides v Cyprus, ECtHR, 16 October 2008 at paras 54-55), even where the victim of the rights breach may not be able, or capable of, pointing to any specific ill effects (see Iovchev v Bulgaria, ECtHR, 2 February 2006 at para 146).
Public law damages and private law damages differ also in the principles relevant to their quantification. Where private law damages are purely compensatory (Ashley v Chief Constable of Sussex Police  1 AC 962 per Lord Scott at paras 22, 23, 29), public law damages may include an exemplary or vindicatory element (Merson v Cartwright  UKPC 38;  3 LRC 264, per Lord Scott at para 18). Further, where private law damages arise as a matter of right where the conditions for their award have been established, public law damages always remains a matter for the discretion of the court (Anufrijeva v Southwark London Borough Council  QB 1124, CA at para 74; and R (Greenfield) v Secretary of State for the Home Department  1 WLR 673 per Lord Bingham at para 19).
Time bars and devolved competence
In Durity v Attorney General of Trinidad in Tobago  1 AC 405 (PC) at 416, para 30, Lord Nicholls noted that where there is no express limitation period for the commencement of constitutional proceedings, the court should “be very slow indeed to hold that by a side-wind the initiation of constitutional proceedings is subject to a rigid and short time bar”.
Section 7(5)(a) of the Human Rights Act 1998 imposes a long-stop one year time limit from the date of the act or omission complained of within which court proceedings must be brought under section 7(1)(a) HRA in respect of an alleged breach of Convention rights. This is, however, subject to any rule imposing a stricter time in relation to the procedure in question. The question of the time within which an action raising a Convention rights challenge as a devolution issue must be brought is left unspecified in the Scotland Act. As Lord Rodger of Earlsferry has noted:
“A time-limit for taking proceedings is not incompatible with the Convention. Under Art 35(1) an application to the European Court of Human Rights must be made within six months from the date when the final domestic decision was taken. Similarly, under sec 7(5) of the Human Rights Act 1998 (cap 42) proceedings against a public authority for an alleged violation of Convention rights must be brought within the period of one year beginning with the date when the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all the circumstances. This is subject to any rule imposing a stricter time-limit in relation to the procedure in question. Since the Scotland Act does not specify any time within which proceedings are to be taken, the ordinary rules relating to the procedure adopted to vindicate the right in question must apply.” (Robertson v Higson, 2006 SC (PC) 22 at para 28.)
But there are no time limits applicable to judicial review petitions brought in Scotland, which is the procedure which has usually been adopted in seeking the vindication of Convention rights claims. In Scottish judicial review procedure, the matter of undue delay in bringing a matter before the court is left to the discretion of the court under the existing common law principles of mora, taciturnity and acquiescence (see, for example, King v East Ayrshire Council, 1998 SC 182, IH per Lord President (Rodger) at 196; and Swan v Secretary of State for Scotland, 1998 SC 479, IH). There is no Scottish authority in which the plea of mora, taciturnity and acquiescence has been upheld, in the absence of evidence of acquiescence by the pursuer and prejudicial reliance on the part of the defender, on the ground of delay alone (see for example R (Burkett) v Hammersmith LBC  1 WLR 1593, where Lord Hope of Craighead summarised the Scottish position at paras 63-64). This therefore leaves the acts of the Scottish administration and legislature under the present law potentially open to challenge by way of judicial review for an indefinite period, regardless of whether or not brought the case is brought on Convention rights grounds and whether or not seeking just satisfaction damages.
On the other hand it is clearly within devolved competence for the Scottish administration to introduce time limits within which all judicial review claims have to be brought. And in any legislative provision which might confirm the sheriff court’s jurisdiction in “pure” just satisfaction damages claims brought under section 100(3) SA, specific time limits for the raising of such claims in that forum could competently be specified. (Regulation 3 of the Human Rights Act 1998 (Jurisdiction) (Scotland) Rules 2000 (SSI 200/301) already implicitly confirms the jurisdiction of the sheriff court in relation to “pure” just satisfaction damages claims brought under section 7(1)(a) HRA.) None of this would involve any need for amendment of the Scotland Act. Section 126(4)(e) SA includes within the definition of “Scots private law”, “the law of actions (including jurisdiction, remedies, evidence, procedure, ... limitation of actions) and includes references to judicial review of administrative action”. And section 29(4) SA expressly allows the Scottish Parliament to make modifications to Scots private law even as it applies to reserved matters if “the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise”.
Thus it has been within the power of the Scottish devolved institutions, at any time since their inception, to change the law in Scotland by making provision for express time limits within which judicial review applications have to be brought and by applying these new general time limits even to actions seeking just satisfaction damages against the Scottish authorities in respect of their Convention-incompatible action. Such provisions would not be in breach of the limitations imposed by the Scotland Act, provided always that such time limits did not contravene Strasbourg-derived principle that individuals should have access to an “effective remedy” in respect of any Convention rights breaches.
The Scottish Government has not been unaware of this. In his statement to the Scottish Parliament on 11 March 2009 the Cabinet Secretary for Justice, Kenny MacAskill MSP, said this:
“The UK Government had suggested that we might address the Somerville issue by changing the law on time bar in Scotland more generally. However, that would reduce the rights of many deserving claimants, such as those who suffer from pleural plaques or been injured through the negligence of an employer.”
Three points can be made in relation to the second sentence of this extract from the statement from the Justice Secretary. First, the application to Convention rights (“just satisfaction”) damages claim of the same period which applies to private law damages claims for personal injuries (currently three years: Prescription and Limitation (Scotland) Act 1973, section 17), would not result in the reduction of any right of any existing claimants, since all that this would do would be establish parity of treatment between these two categories of case. Secondly, an unworthy insinuation is being made by the minister to the effect that all and any who seek damages in respect of the violation of their Convention rights are ipso facto less deserving than those seeking damages for personal injuries. Finally, and in any event, quite different rules, principles and procedures already apply in relation to public law damages claims, since these are usually brought in the context of judicial review petitions. The introduction of changes in relation to the time limits applicable to such public law damages claims need not have any impact upon private law delictual damages brought by way of ordinary action. It is simply not the case, as claimed by the ministers in para 11 of their press briefing note which accompanied the Justice Secretary’s statement of 11 March 2009, that the Scottish Parliament “would have to legislate in relation to time bars for all civil actions, not just actions based on Convention rights” were it to seek, within existing devolved competence, to set a cap on the possible future liability for just satisfaction damages claims in respect of prisoners’ past exposure to slopping out conditions.
The draft Scotland Act 1998 (Modification of Schedule 4) Order 2009
Be that as it may, the Scottish Ministers appear now to have won the day and exerted sufficient political pressure on the Westminster Government (based, in part, on spurious claims that a failure to change the law as they request would result in a further £50 million being paid out to convicted prisoners: see note (1) below) to push through a quite unnecessary amendment to the Scotland Act. On 1 April 2009 the Cabinet Secretary for Justice advised the Scottish Parliament that “the UK Government and the Scottish Government had reached agreement in principle on a solution to the anomaly exposed by the House of Lords judgment on Somerville, in terms of which the two Governments committed themselves to working together to deliver a one-year time bar in Scotland by the summer ”.
The solution unveiled is for a draft order under section 30(2) of the Scotland Act to be laid before both the Scottish and Westminster Parliaments for their approval, prior to its being made by the Privy Council. This draft order would empower the Scottish Parliament to introduce a time bar of one year or less in relation “to any proceedings against the Scottish Ministers or a member of the Scottish Executive that may, by virtue of the Scotland Act, be brought in any court or tribunal by any person” (other than the Law Officers) “on the ground that an act of the Scottish Ministers or of a member of the Scottish Executive is incompatible with the Convention rights”.
“Act” of the Scottish Ministers is said for the purposes of the draft Order not to include the making of any legislation, but it does include "any other act or failure to act (including a failure to make legislation)". When the new one year time limit might begin to run in relation to “failure to act” is left unclear in the draft order. The new one year maximum time bar would apply to both civil and criminal proceedings. And yet the new time bar will apply only in cases where Convention rights are used as a "sword”; that is to say in cases taken against the Executive by victims of Convention rights breaches. The new time limit will not apply where Convention rights arguments are used as a “shield”; that is to say as a defence in the course of a civil or criminal action brought against an individual defender, respondent or accused by the state.
It is clear, however, that this draft Order allows for far more than setting a cap on the bringing of aged claims by prisoners for just satisfaction damages in respect of their slopping out, as was its avowed rationale (see note (2) below). Instead it provides for the imposition of a time bar of at most one year in relation to all and any Convention rights claims against the administrative action or inaction of the Scottish Ministers, regardless of whether just satisfaction damages was sought by the Convention rights victims in these actions, and regardless of whether these actions are brought by or on behalf of the apparently deserving (for example the pensioners whose situation was repeatedly mentioned in the Scottish Parliament), as contrasted with allegedly undeserving (i.e. convicted prisoners).
This change in the law involves, under the guise of limiting prisoners’ rights, a significant reduction in the level of judicial protection afforded to the (Convention) rights of each and every private individual in Scotland vis-à-vis the Scottish Government. And all this is being done without any public consultation (see note (3) below), in what looks like a helter-skelter rush to change the change the constitution to the Scottish Government’s advantage before anyone apparently notices the implications of what is being done. It is playing politics with the constitution and we are all the worse off for it.
(1) See statement to the Scottish Parliament on 11 March 2009 by the Cabinet Secretary for Justice:
“The situation created in Scotland by the judgement is untenable and unacceptable. Introducing a one-year time bar would enable us to draw a line under our liability in relation to claims of the kind made in Somerville, and so could release up to some £50 million for spending on more worthwhile purposes. It would also reduce our liability in relation to other human rights claims that might arise in the future.
"£50 million is a large amount of money. For instance, it could pay for eight new primary schools or 500 new affordable housing units, or employ 1,250 teachers or 1,600 nurses for a year. So this is a very real and important issue."
(2) See briefing note to the statement at para 19: "The Scottish Government believes that the basic point is simple and compelling, and should command widespread support. The Scottish and UK Governments and Parliaments should work together to reduce the amount being paid out to convicted criminals and release up to £50m which can be put to better uses, particularly in the present economic circumstances. Legislation to achieve that should be progressed urgently in both Parliaments.”
(3) The Scottish Government’s Executive Note on The Scotland Act 1998 (Modification of Schedule 4) Order 2009 of 1 April 2009 notes as follows:
“There has not been any public consultation by the Scottish Government on the instrument; but the Scottish and UK Governments have made known publicly their intention to make the instrument and this was the subject of a statement to the Scottish Parliament by the Cabinet Secretary for Justice on 11 March 2009, which was accompanied by publication of drafts of the instrument and of the Bill proposed to be introduced before the Scottish Parliament once the instrument has been made.”