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Session 2008 - 09
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Public Bill Committee Debates



The Committee consisted of the following Members:

Chairman: Jim Sheridan
Brady, Mr. Graham (Altrincham and Sale, West) (Con)
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
Browne, Des (Kilmarnock and Loudoun) (Lab)
Cairns, David (Inverclyde) (Lab)
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
McKechin, Ann (Parliamentary Under-Secretary of State for Scotland)
McGuire, Mrs. Anne (Stirling) (Lab)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Reid, John (Airdrie and Shotts) (Lab)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Walker, Mr. Charles (Broxbourne) (Con)
Wallace, Mr. Ben (Lancaster and Wyre) (Con)
Watkinson, Angela (Upminster) (Con)
Wishart, Pete (Perth and North Perthshire) (SNP)
Yeo, Mr. Tim (South Suffolk) (Con)
Chris Shaw, Committee Clerk
† attended the Committee

First Delegated Legislation Committee

Monday 11 May 2009

[Jim Sheridan in the Chair]

Draft Scotland Act 1998 (Modification of Schedule 4) Order 2009
4.30 pm
The Parliamentary Under-Secretary of State for Scotland (Ann McKechin): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Modification of Schedule 4) Order 2009.
It is a great pleasure to serve under your chairmanship for the first time, Mr. Sheridan. This is also the first time that I have had the pleasure of addressing a delegated legislation Committee as Minister, and I do so on an order made under the Scotland Act 1998. I made Opposition Members aware of our intention to introduce the order and believe that they share my wish, and that of all parties in the Scottish Parliament, to resolve this issue. The order will amend schedule 4 to the Scotland Act 1998 so that the Scottish Parliament can create a time limit, similar to that in the Human Rights Act 1998, for proceedings that deal with allegations that Scottish Ministers or members of the Scottish Executive have breached convention rights. By doing that, we will achieve a pragmatic solution to the problem highlighted in the Somerville case.
On 19 March, the Secretary of State for Scotland and the First Minister announced jointly that we would introduce the order before both Parliaments. We have worked constructively in partnership with the Scottish Government. I hope that the Committee will look favourably on the order. As required, it has been laid in draft before both Houses of Parliament and the Scottish Parliament.
The order will be made under section 30(2) of the Scotland Act, which provides a mechanism by which amendments may be made to schedules 4 and 5. Orders can be used to adjust the boundaries of the Scottish Parliament’s legislative competence by adjusting existing reservations or their exceptions, or by removing matters from or adding them to the list of reserved issues and protected enactments. Since 1999, nine such orders have been made. They demonstrate the Government’s pragmatic approach to the devolution settlement and the flexibility in its terms. Each case is examined on its merits to ensure that functions are exercised at the appropriate level. This is a technical and complex issue, Mr Sheridan, and I hope that you will allow me some time to provide a little of the background.
The Government passed the Human Rights Act 1998 to ensure that the rights and freedoms that we consider essential to all in our society had a statutory basis throughout the UK. It provides a reference point for all human rights claims and considerations in the UK. Under section 6(1) of the Human Rights Act, it is unlawful for a public authority to act in a way that is incompatible with a convention right. Those rights are drawn from the European convention on human rights and are set out in schedule 1 to the Act. If a person claims that a public authority has acted, or proposes to act, in a way that is unlawful under section 6(1), they may bring proceedings against it in the appropriate court or tribunal. A person is permitted to do so only if they are or would be a victim of the unlawful act. The term “public authority” includes members of the Scottish Executive. The Human Rights Act provides the principal positive legal protection of rights and freedoms in domestic law by which individuals can seek redress for a breach of their rights.
The Scotland Act, like the devolution Acts for Northern Ireland and Wales, provides an additional route through which claims can be brought. ECHR obligations were written into the devolution Acts during their passage through Parliament. As a result, Scottish Ministers must always act in compliance with convention rights.
Section 100 of the Scotland Act states that proceedings against incompatible action can be brought only by those who would be entitled to bring proceedings under the Human Rights Act. It also limits any damages through reference to the Human Rights Act. The Human Rights Act requires that proceedings must be brought within one year of the date of the alleged breach, unless a stricter time limit applies to the procedure in question. A court or tribunal may permit proceedings beyond that time limit if it believes that it is equitable to do so, having regard to all the circumstances. However, the Scotland Act 1998 makes no such provision. As a result of the House of Lords Somerville judgment, those bringing a claim under that Act, notwithstanding the fact that the claim is identical in all other respects to a human rights claim, are not subject to the one-year limitation under that Act and are subject only to general limitation principles as a matter of Scots law. In practice, that allows a much longer period within which to raise proceedings.
The UK Government and Scottish Ministers have worked closely together on the issue. Our joint aim has been to reach a pragmatic solution that allows an equivalent time limit to be put in place for claims brought under the Scotland Act or the Human Rights Act. Following intensive discussions between officials, the Secretary of State for Scotland and the First Minister announced agreement on 19 March to work together to facilitate a one-year time limit in Scotland by the summer. As soon as legislative time becomes available, the UK Government will seek the support of Parliament to introduce a comprehensive solution to extend the same provisions to the devolved Administrations in Wales and Northern Ireland, to put all the devolved jurisdictions on a consistent footing, and to consolidate the changes to the Scotland Act as soon as legislative time becomes available.
That agreement has already been supported by the Scottish Parliament’s Justice Committee, and the order is due to be voted on in plenary by Holyrood tomorrow. The Committee may also wish to note that we sought the views of the Calman commission on Scottish devolution, which confirmed that it supports that approach. The order will enable the Scottish Parliament to pass legislation to provide a time limit within the Scotland Act consistent with that in the Human Rights Act, so that certain convention-based claims brought against Scottish Ministers or a member of the Scottish Executive, which may be based on the same facts and unlawful act, are subject to the same time limit whether pursued under either Act.
As a general rule, time limitations in relation to claims brought in civil courts in Scotland are a devolved matter of law, but this context requires modification of the Scotland Act to introduce the proposed time limit. However, paragraph 4(1) of schedule 4 to the Scotland Act provides that an Act of the Scottish Parliament may not modify or confer power by subordinate legislation to modify the Scotland Act itself. There are certain exceptions to that rule, and paragraph 4(2) of schedule 4 lists actions under the Scotland Act that may be modified by the Scottish Parliament. The order inserts a new paragraph 4A into schedule 4 to enable the Scottish Parliament to legislate on time limits for claims brought under the Scotland Act alleging breach of convention rights by Scottish Ministers or a member of the Scottish Executive. It provides that any legislation enacted by the Scottish Parliament must provide for proceedings to be brought within one year, beginning with the date on which the act complained of took place, or such longer period as a court may consider equitable. That is similar in terms to section 7(1)(a) and (5) of the Human Rights Act. That limitation period is without prejudice to any shorter period applicable to the specific procedure, and will not apply to claims about the making of legislation or to claims made by Law Officers.
The joint aim of both the UK Government and Scottish Ministers is to protect the wider public interest. The measure is designed to bring about consistency in the application of human rights legislation in the UK. By taking forward the section 30 order and introducing subsequent legislation, we will create a harmonised position between the Scotland Act and the Human Rights Act.
The Government are proud of the legislation that they introduced in 1998 to protect our fundamental human rights. We continue to promote a situation whereby all public authorities understand and consider our human rights as well as the broader needs of society when developing policies and delivering services.
4.39 pm
Mr. Ben Wallace (Lancaster and Wyre) (Con): I am delighted to serve under your chairmanship, Mr. Sheridan, and to welcome the Minister to our first delegated legislation Committee. I see that her predecessor, the hon. Member for Inverclyde (David Cairns), who thought that he would probably escape the rigours of Committee Room 9, has discovered that the usual channels have other ideas even though he has left office.
The Conservative party fully supports any effort to ensure that the order proceeds as quickly as possible without obstacle or hindrance. It is, of course, regrettable that the Scottish Executive under Labour-Lib Democrat control failed to end slopping out in an appropriate time. That effectively contributed to the Somerville case in 2007, which perhaps forced the issue.
May I ask the Minister a number of questions about the order? Is she content that under new paragraph 4A(4) the Somerville case, or similar cases, will not try to exploit the reasonable reference to “all the circumstances” in the order and constantly challenge the one-year time bar? It has been 18 months since the 2007 ruling of Somerville and others v. Scottish Ministers. Why has it taken so long for the order that will close that loophole to come before the House? Indeed, how many cases have been presented since the 2007 ruling, and what is the subsequent, or potential, cost impact? If the statutory instrument is passed, will the Minister confirm whether the Scottish Parliament will, of its own power, have the authority to amend this or a similar time bar in future if it so wishes?
As I have said, the Conservative party will not oppose the statutory instrument. My counterpart in the Scottish Parliament has written to the First Minister to say that the Conservatives will do their utmost to see a speedy a resolution, and I hope that we see a speedy resolution today in Committee.
4.41 pm
Mr. Alistair Carmichael (Orkney and Shetland) (LD): May I add my welcome to your presence in the Chair today, Mr. Sheridan? It is the first occasion I have had the opportunity of serving under your chairmanship. I also extend my welcome to the hon. Lady in her ministerial duties.
I think it is accepted by all parties that the position in which the Scottish Government find themselves is anomalous. I presume that that is a consequence of the introduction of the Human Rights Act in Scotland through the Scotland Act, prior to its introduction south of the border, or certainly in the rest of the country. In any event, given the view of the House of Lords in the Somerville judgment, it is clear that we are left with a situation in which there is a rather open-ended liability on the Scottish Government with regard to slopping out cases. It is in everybody’s interest that the Government should be allowed to draw a line under their liability in such actions.
In indicating that I do not intend to divide the Committee or oppose the order, it is perhaps appropriate to sound a word or two of caution. In a briefing provided for me, and doubtless other members of the Committee, the Law Society of Scotland has observed that it regrets there has not been the opportunity to consult more widely on the introduction of the measure. It is concerned that, at some future date, it is possible that others who have more worthy claims against the Government may find that their position has been compromised as a consequence of the particular purpose of the regulation.
Having said that, I take some comfort from the provision in new paragraph 4A, which indicates that there may be exceptional circumstances where the interests of equity demand a greater, or a small, degree of discretion to be given to the courts in dealing with the issue. It is, or course, thereafter for the Scottish Parliament to decide what the appropriate time bar will be. All we do here today is give it the power. I hope that it will use it wisely.
4.43 pm
Pete Wishart (Perth and North Perthshire) (SNP): It is a pleasure to see you in the Chair this afternoon, Mr. Sheridan, for what I believe is the first time. I welcome the Minister to the first delegated legislation Committee on which she has had the privilege to address us. I also welcome the order and thank the Government for eventually getting around to putting right this tenuous anomaly.
The issue has excited a great deal of interest in Scotland, and Scottish Government colleagues have been keen to put the matter right since it was established in October 2007 that we had a problem. There is real concern among the Scottish public, who have seen the prospect of up to £50 million going to convicted criminals and convicts instead of going into front-line services and improving the prison stock. I know that Scottish Government colleagues are determined to put the matter right.
The Scottish Government have been put into a tenuous situation by the House of Lords’ judgment, which established the principle that claims could be pursued against Scottish Ministers for alleged breaches of human rights. The judgment meant that Scottish Ministers, perhaps uniquely among any public authority in the UK, could be pursued for damages arising from breaches of human rights, without a one-year time bar. That is nothing to with Scottish Government Ministers or Scottish Parliament; it is not even the fault of the previous so-called Scottish Labour-Liberal Executive, which failed to address the very real problem of slopping out. It is all about the wording of the Scotland Act 1998.
Given that the Act is almost 11 years old, I should have thought that these matters could have been predicted and dealt with earlier. The judgment has meant that a large number of slopping-out claims that were thought to be time-barred may now proceed, and that Scottish Government Ministers face the prospect of having no option but to settle compensation claims for doubled-up slopping out. As many as 20,000 claims that were thought to be time-barred could be made by prisoners, at an estimated cost of up to £67 million. Indeed, £11.3 million has already been paid out. Introducing a one-year time bar at the end of July would mean that £50 million could still be saved. That is an awful lot of money, and could buy two new prison house blocks to accommodate several hundred young offenders. I know what the Scottish public would rather that £50 million be spent on, and it certainly would not be on compensating criminals and convicts.
Such a change in the law would also limit liability for all further human rights claims, not only those for slopping out, and it would change the time limit for future liabilities. In recognising the problem, back in October 2007, the Scottish Government acted very quickly to ensure that it would be addressed. A statement was made in the Scottish Parliament, and its Justice Committee considered the matter quickly. As the Minister rightly mentioned, a decision on this will be taken in the Scottish Parliament tomorrow. However, while the Scottish Parliament and Scottish Ministers were keen to address the issue, the Westminster Government dragged their feet and failed to engage properly with addressing it. They raised all sorts of erroneous issues, and claimed that a time bar would create a spike as people rushed to get in before the limit. Last month’s announcement seemed to cause a spike, as the number of claims received by the Scottish Prison Service’s administration scheme rose from 51 in the week ending 20 March to 106 in the following week. However, the number fell back immediately, and only 48 claims were lodged in the week ending 24 April, so there has not been the spike that the UK Government predicted in earlier discussions.
The legislation is long overdue, and I am glad that Scotland’s anomalous position will now be dealt with, but let me ask the Minister a few questions. Will she assure me that she will now work hand in glove with Scottish Ministers to ensure that this matter is properly addressed? Are there any further horrors in the Scotland Act that we might have to consider in future Committees of this sort? This horror has cost a lot of money, and there have been many problems and concerns in Scotland because the problem was not addressed properly in the first place.
4.47 pm
Ann McKechin: First, let me welcome the cross- party support for this measure, which recognises the understandable public concern that these cases have generated. It is a good sign that there has been close co-operation in the past few months, and we hope that after this order has passed through both Houses of Parliament, and after the relevant order and Act have passed through Scottish Parliament, this matter will be resolved by the summer.
Let me address the comments of the hon. Member for Lancaster and Wyre. The interpretation of whether there can be an extension of time is obviously a matter for the court, but it is in line with the wording in the Human Rights Act, and we would expect the interpretation to fall within that category. We do not think that the order will enable the Scottish Parliament to pass legislation that would otherwise be inconsistent with the one-year time limit.
On the length of time that this matter has taken, we should bear in mind that it is a complex issue, and that we have worked together and to reach a sensible and pragmatic solution, which is what the order is meant to achieve. The hon. Gentleman asked me to give an idea of the figures to date. As the hon. Member for Perth and North Perthshire said, the current levels of compensation have been estimated by the Scottish Government to be approximately £7.9 million. The amount of money that has been paid out in compensation and legal costs now amounts to about £11.3 million. Some 72 writs have been received between 1 April 2008 and 31 March 2009. However, a number of them have been dealt with through the compensation scheme, and not through litigation. It is my understanding that there are approximately 1,090 outstanding claims in total.
The hon. Members for Orkney and Shetland and for Perth and North Perthshire mentioned the passing of the Scotland Act, which went through the House at about the same time as the human rights legislation. A specific amendment to the Human Rights Act limited proceedings to one year. There certainly appears to be an anomaly between that position and the position of the Scotland Act.
The hon. Member for Perth and North Perthshire says that we should conduct a review of the Scotland Act to ensure that nothing else needs to be amended. With respect, I point out to him that the Calman commission, which is about to complete its work, has been given that specific remit, and he may, even at this very late stage, make a submission, requesting it to check a particular feature that he believes should be examined, reviewed or reformed. That is why we thought that this was an appropriate time to consider how the legislation works in practice and how it can be taken forward.
The hon. Member for Orkney and Shetland raised questions about the publication of the proposed time limit and the consultation. I am pleased that the Law Society of Scotland has indicated that it generally approves of the changes. Since agreement was reached between UK and Scottish Ministers on 19 March, the Scottish Government have written to the Scottish legal professions and the head of the Scottish judiciary to give them direct notification. They have also placed notices in the Scottish legal journals and advised all serving prisoners of the proposed change. In view of the public comment and the media coverage, very few prisoners or ex-prisoners in Scotland can be unaware of changes to the legislation.
I think that I have answered all the queries. On that basis, I commend the order to the Committee.
Question put and agreed to.
4.52 pm
Committee rose.
 
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