Time-bar on slopping-out actions against Scottish Ministers
On 18 June 2009 the Convention Rights Proceedings (Amendment) (Scotland) Bill was passed nem con under the Emergency Bill procedure of the Scottish Parliament, the whole process taking less than a day.
The purpose of the Bill was to reverse the decision in Somerville v Scottish Ministers 2008 SC (HL) 45, that the Scotland Act 1998, unlike the Human Rights Act 1998, contained no time-bar restricting the availability of claims against Scottish ministers for human rights infringements; the infringement in question in Somerville being the practice of prisoners in Scotland having to “slop-out” in their cells. For more background on this, see our previous entry here. It is thought that the legislation will save the Scottish Government £50 million.
Apart from the use of the Emergency Bill procedure (the only previous example Scots Law News can remember is the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the Parliament's very first piece of legislation, which ended up being judicially approved by the Privy Council after a couple of years' challenge in the courts), the Bill is also notable for amending the Scotland Act itself (allowed by the statutory instrument mentioned in our previous entry on this topic.)
Prisoners found predictably few defenders amongst the MSPs contributing to the debate on the Bill, but in fairness the same was true for the practice of slopping out. Bill Aitken, Convener of the Justice Committee, did allow himself to comment that the best way for prisoners to avoid slopping out was not to commit offences in the first place (Official Report, col 18525; offenders might say that it is better still not to get caught).
Cabinet Secretary for Justice Kenny MacAskill took the opportunity to have a swipe at the lengthy arguments in the judicial review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (which came into force on 17 June, the day before the debate being commented upon here):
“We are conscious that, despite the fact that this Parliament united to bring in compensation in relation to pleural plaques, the Government is being pursued through the courts by those who represent the insurance companies. However, in that regard, I should say that even the first orders of the cases of those who are pursuing us appear to be taking considerably longer than the entire parliamentary process took. That perhaps explains why we look forward with interest to Lord Gill's report. Something is manifestly wrong if the parliamentary process is significantly quicker than the first order in a judicial review.” (Official Report, col 18610)
The reference is to the long-awaited report of the Gill review of civil justice, which Scots Law News thought originally was going to come out in March, then, later, in June. The tale is now that it will appear in July, just in time to take to the beach.