The
Committee consisted of the following
Members:
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
Parliaments 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
Governments 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
Parliaments 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 everybodys 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 months announcement
seemed to cause a spike, as the number of claims received by the
Scottish Prison Services 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 Scotlands
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.