Time-bar on human rights actions against Scottish Ministers

A draft statutory instrument was laid before both the Westminster and Scottish Parliaments on 11 March 2009 as the first step towards the reversal of the House of Lords decision in the prisoners’ slopping-out case, Somerville v Scottish Ministers 2008 SC (HL) 45, that there is no time-bar limiting human rights claims under the Scotland Act 1998 (unlike the Human Rights Act 1998).

The SI, to be known as the Scotland Act 1998 (Modification of Schedule 4) Order, amends the said Schedule to enable an Act of the Scottish Parliament to modify the Scotland Act itself and impose a time-limit on claims against Scottish Ministers or members of the Scottish Executive made on the ground that an act of either party is incompatible with Convention rights.  Once this has come into force, the Scottish Government intends to introduce primary legislation establishing a one-year time bar in such actions.

The approach of the Scottish Government will be challenged by Aidan O’Neill QC in a forthcoming note in the Edinburgh Law Review (also available at Jonathan Mitchell's blog), arguing that since judicial review is within the devolved competence of the Scottish Parliament, it is perfectly possible to introduce a time-bar for such cases as and when they involve claims for damages, as in the slopping-out cases.  The argument of the Scottish Government, that it would have had to amend the whole of the law of prescription and limitation and thus adversely affect the claims of the deserving, such as victims of pleural plaques or industrial accidents, seems, for the reasons put forward in Mr O’Neill’s note, to be unconvincing.

The Scottish Minister’s statement on the steps being taken contains some interesting data on the costs of the slopping-out fiasco.  The Scottish Prison Service has set aside £67 million to meet the prisoners’ damages claims.  As at 5 March, 3,737 cases had been settled at a total cost of £11.2 million and a further 1,223 cases were being dealt with.  New claims were being raised at an average of 200 per month.  The time-bar will not, it seems, be retrospective, but allow the Scottish Government “to draw a line” under its liability in relation to claims made after the new legislation comes into force, possibly saving £50 million of the £67 million already set aside. 

The Scottish Government hopes to have its legislation in place before the summer recess.  Prisoners hope to have their claims in before then.