Human Rights Act not made retrospective

Claim cannot be brought that was excluded before Act passed

News, 14 June 2007

Parliament did not intend the Human Rights Act 1998 to have retrospective effect so as to permit a claim to be brought that had previously been excluded, appeal judges in the Court of Session have ruled.

The court was giving judgment in refusing an appeal by a woman referred to as "DJS", who claimed criminal injuries compensation for sexual abuse suffered by her at the hands of her father from 1968 to 1971 when she was aged between four and seven. In addition to mental health problems, this resulted in damage to her womb which left her unable to have children.

For injuries sustained before 1979, the scheme excluded compensation where the victim and perpetrator were living together in the same family, due to the difficulties of establishing the facts and the difficulty of ensuring that compensation did not benefit the offender. DJS challenged this provision as contrary to her rights under the Human Rights Convention.

DJS argued that although her application was made and refused in 1999 and the Human Rights Act did not come into force until 2 October 2000, it applied because a decision on review of her case, made in August 2001, amounted to a fresh decision on the merits. The exclusion in the scheme was a violation of her rights under articles 3, 8, 14 and article 1 of protocol 1 of the Convention.

Lord Osborne, giving the opinion of the court, said it was important to remember that the Convention itself was not part of domestic law: the rights were created by the 1998 Act in the same terms as those expressed in the Convention. Pointing to previous House of Lords decisions that the Act did not have retrospective effect, he added: "We have insuperable difficulty in seeing how the 1998 Act could in any circumstances have retrospective effect, in the sense of conferring upon a claimant a cause of action which that claimant would not otherwise have had."

"More particularly," he continued, "we are quite satisfied that the presumption that legislation does not affect pending proceedings... does operate in the circumstances of this case. There is nothing in the 1998 Act to demonstrate that Parliament intended that this presumption should not operate."

The court added that in their view the complainer had failed to bring her case within the ambit of any of the articles she founded on.

The opinion can be read at http://www.scotcourts.gov.uk/opinions/2007CSIH49.html .