Lords' ruling extends reach of slopping out cases

Human rights claims against Scottish ministers not subject to 12 month time limit

News, 25 October 2007

Claims against the Scottish ministers under the Scotland Act 1998 for alleged breaches of the European Convention on Human Rights are not subject to the 12 month time limit in the Human Rights Act, the House of Lords ruled yesterday.

The 3-2 majority decision, reversing the First Division, has greater significance for prisoners seeking damages on the basis of prison conditions such as having to slop out, than it does for those bringing the present proceedings.

These concerned four prisoners each segregated for various periods from other inmates, on the orders of the prison governor. Although the House found in the prisoners' favour on the time bar point, it also held that the ministers were not responsible for orders made under the relevant prison rules, and therefore that proceedings in respect of the governors' acts were covered by the Human Rights Act and not the Scotland Act.

Ruling on the time bar argument, which turned on the effect of section 100 of the Scotland Act, Lord Hope of Craighead said that the purpose of section 100 was to ensure there was no inconsistency between the two Acts in the way the "victim test" was applied. It did not follow from its provisions that the proper basis for a claim for damages for an act incompatible with the Convention was the Human Rights Act.

"A person who wishes to assert that the act or failure to act is outside competence in terms of the Scotland Act because it is incompatible with Convention rights must accept the limitations that are imposed by section 100.... But these limitations do not mention the section 7(5) time bar. The absence of a reference to that subsection indicates that it was the intention of Parliament to confine the limitations to those that were mentioned expressly."

Supporting the decision, Lord Rodger of Earlsferry pointed out that judicial review proceedings such as the present should be brought promptly. "If they are not, the court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the public interest in public authorities and third parties not being kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it."

Lord Walker of Gestingthorpe agreed with the two Scottish Law Lords on this issue; Lord Scott of Foscote and Lord Mance dissented.

Public interest immunity

All five judges were agreed in allowing an appeal against the Lord Ordinary's refusal to inspect certain documents for which the ministers claimed public interest immunity. Where the documents were covered by a production order granted at the prisoners' request, they did not have to show why they should recover the full version of the documents. Lord Rodger said:

"The decision on whether they should do so was one for the Lord Ordinary after balancing the competing interests of the petitioners in having relevant material and of the public in maintaining the confidentiality of that material. I can see no way in which the Lord Ordinary could carry out that vital balancing exercise in this case without actually looking at the documents in question."

Proof has still to be heard in the cases, and the House was critical of the complex pleadings which had contributed to the cases already having been in progress for over four years.

It is believed that while ministers have settled around 200 "slopping out" cases, another 1,500 have been awaiting this decision, and more could yet be brought as the practice as respects shared cells ended only in 2005.

The appeal judgments can be read by following this link: Somerville v The Scottish Ministers .