| DEVOLUTION — Scotland — Human rights — Claim alleging breach of Convention right by prison governor — Whether act of governor act of member of Scottish Executive — Whether claim against member of Scottish Executive for breach of Convention right subject to Human Rights Act time-bar — Public interest immunity claim — Whether necessary for court to examine redacted documents — Human Rights Act 1998, ss 6(1), 7(5), Sch 1, Pt I, art 8 — Scotland Act 1998, ss 54(3), 57(2), 100, 129(2)
Somerville and others v Scottish Ministers (HM Advocate General for Scotland intervening)
HL(Sc): Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Mance: 17 October 2007
The time-limit in s 7(5) of the Human Rights Act 1998 did not apply to a claim for damages based on breach of a Convention right by a member of the Scottish Executive where the act or failure to act relied on was outside devolved competence and thus ultra vires in terms of the Scotland Act 1998.
The House of Lords so held (Lord Scott of Foscote and Lord Mance dissenting on that issue) on appeals by four petitioners, Andrew Somerville, David Henderson, Ricardo Blanco and Samuel Ralston, and cross-appeals by the respondents, the Scottish Ministers, from determinations by the First Division of the Inner House of the Court of Session (Lord Hamilton (Lord President), Lords Macfadyen and Nimmo Smith) 2007 SC 140 on reclaiming motions from determinations by the Lord Ordinary (Lady Smith) in the Outer House.
LORD HOPE OF CRAIGHEAD said that the petitioners had been serving sentences of imprisonment and complained that they had been segregated under r 80(1) of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 in breach of their rights under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Ss 100 and 129(2) of the Scotland Act 1998 showed that Parliament intended that a person, who complained that an act or failure to act of a Scottish Minister was outside competence because of incompatibility with a Convention right, should be able to seek a remedy on the ground that it was ultra vires in terms of the Scotland Act. Since s 100 did not mention the time-bar in s 7(5) of the Human Rights Act 1998, it did not apply to the petitioners’ proceedings. As to whether the act of a prison governor in making an order under r 80(1) of the 1994 Rules was to be regarded as an act of a member of the Scottish Executive for the purposes of s 57(3) of the Scotland Act 1998, whoever was acting as governor for the purposes of that rule was exercising a different function from that of the ministers, who were not responsible for his order. As to whether the withholding from the petitioners of redacted material had been justified by public interest immunity certificates, that had been for the Lord Ordinary to determine balancing the competing interests. She could not properly perform that task without examining the documents, and they should be produced for her inspection.
LORD SCOTT OF FOSCOTE, dissenting on the first issue, said that s 100(3) of the Scotland Act 1998 had simply been intended to make clear that any action for damages brought in respect of an act alleged to be ultra vires because of incompatibility with a Convention right would be subject to s 8(3)(4) of the Human Rights Act 1998. If the petitioners’ damages claims, which were not delictual claims, were viable, they were brought pursuant to s 7(1)(a) and were thus subject to s 7(5).
LORD RODGER OF EARLSFERRY and LORD WALKER OF GESTINGTHORPE delivered opinions concurring in disposal of the appeals as proposed by Lord Hope.
LORD MANCE delivered an opinion dissenting on the first issue.
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Appearances: Aidan O’Neill QC, Ailsa Carmichael and Simon Collins (all of the Scots Bar) (Balfour & Manson, Edinburgh for Taylor & Kelly, Coatbridge) for the petitioners; Gerry Moynihan QC, James Wolffe and Douglas B Ross (all of the Scots Bar) (Solicitor to the Scottish Executive, Edinburgh) for the Scottish Ministers; Lord Davidson of Glen Clova QC, Advocate General for Scotland, with Philip Sales QC (of the English Bar) and Mark Lindsay (of the Scots Bar) (Solicitor to the Advocate General, Edinburgh) intervening.
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