A timeless Act

Is a claim against the Scottish Ministers for breach of the European Convention on Human Rights subject to time bar?

The issue hit the headlines when the House of Lords issued its decision in October in the consolidated appeals known as Somerville v The Scottish Ministers [2007] UKHL 44.

As soon as the House of Lords decision was published, the press focused on its implication for the “slopping out” cases. It was described as “the time bomb ticking away in the prison system which everyone seemed keen to ignore”.

The cases involved in the Somerville appeals, however, are applications for judicial review and are not concerned with conditions of detention where prisoners are required to slop out.

The point at issue is whether prolonged segregation of prisoners and the method and processes of that segregation violated their Convention rights. At the heart of the judicial review proceedings is a challenge to the lawfulness of their removal from general association with other prisoners. The petitioners also seek damages for the averred consequences of these decisions by reference to s 8 of the Human Rights Act and s 100(3) of the Scotland Act. 

The press coverage described the history of the cases to date as “a long and protracted process”, and that is correct for a number of reasons. Some fundamental issues arose at the interlocutory stage that required to be resolved before getting to the stage of leading evidence. After the journey from the Outer House to the Inner House and the House of Lords, the process is far from complete.

However certain questions have now been resolved that will have widespread legal implications, reaching beyond both the Somerville litigation and the instantly recognisable slopping-out cases.

Crux of the appeal

Five issues were argued before the House of Lords, and the principal point, it is perceived, is time bar.

Time bar was at the core of a number of issues, but the main point in essence was whether a claim for damages based on breach of a Convention right by a member of the Scottish Executive is subject to the provisions of s 7(5) of the Human Rights Act.

Section 7(5)(a) requires proceedings against a public authority under the Human Rights Act to be brought within one year from the date on which the act complained of took place. Section 7(5)(b) allows for a longer period such as the court considers equitable in all the circumstances.

The Scotland Act, on the other hand, contains no time limit within which proceedings challenging decisions of the Scottish Ministers as ultra vires, and seeking damages by reference to the Scotland Act, must be raised. Section 100(3) however provides:

“This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act [rules governing awards of damages] applied.”

Wider application

Identifying this point, Lord Hope stated at para 10: “This issue arises on the pleadings in the cases of Henderson and Blanco as an issue about time bar. But it is an issue of much wider significance. Anybody who wishes to bring any proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on any of the Convention rights in any proceedings, needs to know whether he must do this under ss 6 to 8 HRA or whether he must do so, or can do also, on the ground that the act or failure to act is contrary to the provisions of the Scotland Act.”

The petitioners were successful before the Outer House. Relying on the views expressed by Lords Hope and Rodger in R v HM Advocate 2003 SC (PC) 21, they argued that the appropriate route is under the Scotland Act, not the Human Rights Act. The Scottish Ministers successfully overturned that in the Inner House, which held that given that a remedy is available under the Human Rights Act, ss 7 and 8, there is no need to look to the Scotland Act for a basis for a claim of damages. In so doing the First Division queried the correctness of the dicta in R v HM Advocate.

Before the House of Lords both the Scottish Government and the Advocate General were represented. Once again the arguments focused on the relationship between the Scotland Act and the Human Rights Act.

The litigant’s choice

The Law Lords held (by a 3-2 majority) that it is open to the litigant to choose which Act to proceed under, and that the time limit in s 7(5) of the Human Rights Act does not apply to proceedings by reference to the Scotland Act.

The critical factor was the construction and effect of s 100 of the Scotland Act, and s 100(3) in particular.

Lord Rodger deals with the point in para 131 of his opinion, where he states that the Scotland Act has from the outset enabled a victim to obtain just satisfaction for acts or failures to act by the Scottish Ministers which are found to be in breach of his Convention rights. For example, he can obtain a remedy such as a declarator or a decree of reduction etc. He can also be awarded damages, but s 100(3) ensures (in the same way as s 8(3) and (4) of the Human Rights Act) that damages cannot be awarded unless the court is satisfied that they are necessary to afford the victim “just satisfaction” in all the circumstances.

Thus, the law achieves what is required by article 13 of the Convention, that the effective remedy is available to the victim for the violation of his Convention rights.

In summary, a party whose complaint is that an act (or a failure to act) of a Scottish Minister is outside devolved competence because it is Convention incompatible, can seek a remedy on the ground that such an act or a failure is ultra vires in terms of the Scotland Act. No time limit is contained within that Act for challenging such decisions and seeking damages in terms of the Act. As s 100 of the Scotland Act does not refer to s 7(5) of the Human Rights Act, the s 7(5) one year time bar does not apply to proceedings brought under the Scotland Act.  

The discussions did not delve into the provisions of the Prescription and Limitation (Scotland) Act 1973. Time will tell whether and how argument develops in this area, and whether, despite the clear majority opinion of the House of Lords, any attempt is made to impose a time period – or pursue other arguments instead.

Elaine Motion is a partner, and Sindi Mules a solicitor, in the litigation department of Balfour & Manson, Edinburgh agents for the petitioners in Somerville

PII – NO ONUS ON PETITIONERS

The Somerville decision also resulted in the House of Lords affirming the procedure to follow in considering a ministerial public interest immunity certificate, contrary to that adopted by the lower courts.

It all started as a simple motion by the petitioners that any litigator will be familiar with, for recovery of documents. Anyone who has ever sought such an order will be aware that a party will not be able to recover any material unless it is of potential relevance to what is averred in the pleadings.

The respondents marked no opposition; matters called by order before the Lord Ordinary and she granted in each of five cases a commission and diligence for the recovery of documents that were in the hands of the respondents, the Scottish Ministers.

No-one could have imagined the machinations that would follow. As Lord Rodger put it (para 150), “the fact that there was no objection by counsel for the respondents shows that they accepted that documents falling within the terms of the specification were indeed relevant to the issues raised in the pleadings”.

What followed was a bundle of censored (redacted) documents. Most of the documents were blanked out in part, and some completely. Acting for the petitioners, it was difficult to make much, if any sense of what had been released; the entire purpose behind commission and diligence procedure was defeated.

The Minister for Justice, for the Scottish Ministers, believed that full disclosure of the documents would cause real harm to the work of the Scottish Prison Service. Accordingly public interest immunity certificates (“PII certificates”) were lodged.

The petitioners agreed that the identity of the persons referred to in the PII certificates should remain undisclosed. However they insisted that the remaining documents should be released.

By way of a compromise, and with the best of intentions, a protocol was entered into between counsel, with the net result that counsel for the petitioners would “not disclose the contents [of the documents] to any other person except to the extent to which the court should decide that the document should be disclosed notwithstanding the assertion of PII”.

In other words, counsel for the petitioners were allowed to see the uncensored parts of the documents, on terms that they would not disclose the contents to any other party (including instructing solicitors or clients), without the consent of the court.

This was followed by an in camera hearing; the petitioners’ solicitors were requested to leave the hearing.

Procedure paralysed

With hindsight, something of a surreal situation emerged. Counsel for the petitioners moved the Lord Ordinary to have the full documents produced to the court so that she could decide whether the redacted passages should be disclosed. The Lord Ordinary declined to examine them, on the basis that counsel for the petitioners failed to point out the specific averments in the pleadings to justify their relevance to the petitioners’ case. The pleadings remained incomplete at that stage for a number of practical reasons. The Inner House upheld the Lord Ordinary’s decision.

The Law Lords were critical of the protocol entered into. It resulted in what Lord Rodger referred to as a “paralysis in the procedure”. It created both practical and ethical difficulties. Fundamentally, it led the court to adopt a mistaken approach.

Ultimately, it all now seems very simple. It all goes back to the well established procedure of commission and diligence. If you show that all the documents sought are relevant to your pleadings, you establish a prima facie case that they should be disclosed. If they are irrelevant, why would they be produced under specification? In this case, the documents were censored not because they were irrelevant, but because the Justice Minister held that their disclosure would be contrary to the public interest.

Sufficient reason for withholding

The onus was not on counsel for the petitioners to show why the documents in question should be disclosed. As Lord Hope said at para 62: “The issue for the Lord Ordinary therefore was not whether disclosure of these documents would have a bearing on the case that had been pled or would assist the petitioners in proving or disproving matters that had been raised in the pleadings. It was whether sufficient reasons had been given by the Minister for Justice in her PII certificates in the public interest for withholding the redacted material.”

If conflicting public interests arise, the court will require to consider them by weighing up the purpose of the production of documents in civil litigation, “to provide as good a chance as is practicable of the litigation culminating in a just result”, as against preventing disclosure where that would harm the public interest (per Lord Scott at para 85). Clearly, there may be circumstances where disclosure of certain documents is contrary to the public interest.

The Law Lords were unanimous that it is for a judge to strike the balance and that the Lord Ordinary could not have properly done so without examining the documents.

The balance between the interests of justice, which favoured disclosure, and the public interest which the Minister for Justice asserted, which favoured withholding the material and to which due weight had to be given in view of its subject matter, was for the Lord Ordinary to assess.

LESSONS FOR SOLICITORS

DO

• have faith in the well established procedure for commission and diligence;
• ensure that your specification is backed by the averments in the pleadings.

DON’T

• allow agreements to be entered into that compromise counsel and/or exclude you as the instructing solicitor from a critical part of the litigation process;
• assume, having obtained an order for commission and diligence, that because PII certificates have been lodged, the onus is on you to show why you require the documents. Remember you have already done so!