Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Etc
20. The question then is what indications there are in either Act that it was the intention of Parliament that proceedings in which it was alleged that an act or a failure to act was outwith the devolved competence of the Scottish Ministers because it was incompatible with the Convention rights must be brought, and brought only, under the Human Rights Act subject to the limitations which that Act lays down, including the time bar, for the obtaining of judicial remedies. The Human Rights Act does not mention the Scotland Act, although it refers in its definition of "subordinate legislation" in section 21(1) to Acts of the Scottish Parliament. So the answer must be found in what the Scotland Act itself provides.
(a) Section 129(2) SA
21. I start with section 129(2). It provides:
This subsection took account of the fact that, although the Human Rights Act was expected to receive the Royal Assent at about the same time as the Scotland Act, it was the intention to defer bringing most of the Human Rights Act into force until after the Scotland Act was fully in force. The Human Rights Act received the Royal Assent on 9 November 1998. The Scotland Act received the Royal Assent on 19 November 1998. Sections 18, 20, 21(5) and 22(1) HRA came into force on Royal Assent, and section 19 was brought into force on 24 November 1998. The bringing into force of the remainder of that Act was deferred until 2 October 2000: SI 2000/1851. The provisions of the Scotland Act were brought into force by stages also. The provisions dealing with devolved competence were brought into force in May 1999 and the Act was fully in force by 1 July 1999: SI 1998/3178.
22. One of the drafting techniques that was employed for the purposes of the Scotland Act was to refer to the Human Rights Act as a dictionary for use when dealing with issues about Convention rights. Sections 29(2)(d), 57(2) and 100(1) and Schedule 6 SA use the expression "the Convention rights". It is defined in section 126(1) SA as having the same meaning as in the Human Rights Act 1998. Section 57(3) refers to acts which are not unlawful because of section 6(2) HRA. Section 100(3) refers to damages which a court or tribunal could not award if section 8(3) and (4) HRA applied. Section 129(2) enabled these provisions to be given effect during the period prior to the coming into force of the relevant provisions of the Human Rights Act in just the same way as they would when they were brought into force.
23. The First Division said that the effect of section 129(2) SA was that the Human Rights Act was to be treated as in force for the purposes of the Scotland Act as from the date when the Scotland Act came into force: para 54. But this is not what section 129(2) says. It refers, and refers only, to the provisions in the Scotland Act which are designed to protect Convention rights. It enables them to receive effect as from the date when they are brought into force on the assumption that the provisions of the Human Rights Act on which they depend were already in force by that date. The First Division said later in the same paragraph that the subsection points to an intention of Parliament that as from the coming into force of the Scotland Act it should be read and construed consistently with the Human Rights Act, and that this was wholly inconsistent with the notion that the Scotland Act was a self-contained, self-standing and self-understood instrument. In my opinion this proposition overstates the effect of section 129(2). It is true, as I have said, that the Scotland Act uses the Human Rights Act as dictionary to explain what it provides for the protection of Convention rights. To that extent, and for that purpose only, the subsection enables reference to be made to the Human Rights Act, although not yet in force. But it does not justify reading into the Scotland Act any of the provisions of the Human Rights Act, such as section 7(5) HRA, that the Scotland Act itself does not refer to.
24. A careful and accurate reading of section 129(2) is important because it reveals something else about the intention of Parliament. It tells us that it was the intention of Parliament that the system which the Scotland Act provides, by which an act or a failure to act which is incompatible with the Convention rights is outside devolved competence, was to be capable of receiving effect in just the same way before the Human Rights Act was fully in force as it was to be afterwards. There could, of course, be no question of such an act or failure to act being made unlawful until the coming into force of section 6(1) HRA. But this was of no consequence for the purposes of the Scotland Act, because it provides that an act or failure of that kind is outside devolved competence. Although the dictionary is needed to understand what is meant by its references to the Convention rights and to the references to the Human Rights Act in section 57(3) and section 100, the system of devolved competence as a whole, with all its consequences, was intended to be fully operational as from the coming into force of the Scotland Act.
25. Mr Moynihan QC recognised that, on his argument, the system of devolved competence was lacking one of its essential features until the coming into force of the Human Rights Act. This was because it was not until that stage was reached that an act or a failure to act that was incompatible with the Convention rights could be said to be made unlawful by section 6(1) HRA and the remedies for which that Act provides became available. He said that this was just something that had to be lived with. The delay was not, after all, expected to be for very long. I do not think that such an odd situation can be what Parliament intended. The system of devolution which the Scotland Act lays down was carefully worked out in every other respect. If there was to be such a transitional loophole, it could easily have been dealt with in section 129. The absence of such a provision indicates that Parliament saw no need for it because the Scotland Act was to have its own system for protecting Convention rights, including a just satisfaction remedy, by means of the limits that were to be placed on devolved competence.
(b) Section 100 SA
26. I turn next to section 100. It contains two subsections that contain indications about what Parliament intended to be the relationship between the two Acts. Section 100(1) provides:
Section 100(3) provides:
27. Careful attention needs to be paid to the language of these two subsections. The purpose of section 100(1) is, of course, to ensure that there is no inconsistency between the Scotland Act and the use for the purposes of section 7(1) HRA of the victim test referred to in section 7(7) HRA. The purpose of section 100(3) is to ensure consistency between the Scotland Act and sections 8(3) and (4) HRA in regard to the awarding of damages. What matters for present purposes is the language that is used to achieve this. The formula that is used in each subsection is the same. The words "This Act does not enable" are followed by a reference to what the position "would be" if proceedings were brought in the European Court of Human Rights (section 100(1)) or to what a court or tribunal "could not award" if section 8(3) and (4) applied (section 100(3)). In both cases the limitation that is imposed for the purposes of the Scotland Act is defined by comparing what the Act "does not enable" with what cannot be done in proceedings brought otherwise than under reference to the Scotland Act.
28. In my opinion the inference that is to be drawn from the way these subsections are expressed is that it was assumed by Parliament that all that needed to be done to protect the Convention rights in the case of pre-commencement enactments in the devolved system was to provide that the exercise of functions in a way that was incompatible with the Convention rights was outside devolved competence: section 54(3) SA. The limitations that are expressed in sections 100(1) and 100(3) SA are consistent with that assumption. There was no need to say anything about the remedies that might be obtained in respect of an act or failure to act of a member of the Scottish Executive that was outside competence except where this was because of an incompatibility with Convention rights. Inconsistency between the Scotland Act and the Human Rights Act in regard to an incompatibility with Convention rights could have been dealt with by making such an act or failure to act unlawful within the meaning of section 6(1) HRA and applying sections 7 and 8 HRA. But that is not what section 100(1) does. It assumes that the same proceedings may be brought under the Scotland Act on the ground of this kind of devolved incompetence as in the case of any other. On the assumption that damages may also be awarded as just satisfaction where an act is outside competence because it is incompatible with a Convention right, section 100(3) enacts special rules to ensure consistency with sections 7 and 8 HRA in the respects, and in the respects only, that it expressly refers to. Like section 8(3) HRA, it does not concern itself with anything other than just satisfaction damages.
29. The First Division discuss the effect of section 100 in para 80. They point out that a Convention incompatible act is not only outside the competence of the Scottish Ministers. It is also made unlawful by section 6(1) HRA. They say that, given that a remedy is available under sections 7 and 8 HRA, there is no need to look for a basis for a claim of damages to the Scotland Act. They then say that section 100 can be given what they describe as its natural meaning, rather than be distorted into an implied positive assertion of a right to claim damages. Having referred to the two ways in which sections 100(1) and 100(3) ensure consistency between the Scotland Act and the Human Rights Act, they conclude that the proper basis for a claim for damages is that the act or failure to act is unlawful, for which a claim is made available under section 8 HRA. It follows, they say, that such a claim is properly subject to the time bar imposed by section 7(5)(a) HRA.
30. In my opinion this approach fails to address the precise wording of sections 100(1) and 100(3). It is true that an act or a failure to act which is incompatible with the Convention rights can be said to both outside competence for the purposes of the Scotland Act and unlawful for the purposes of the Human Rights Act - now that the Human Rights Act is fully in force. It is also right to say that section 100 SA does not positively assert a right to claim damages for an act or a failure to act which is incompatible. And section 8 HRA does indeed contain provisions which expressly enable a court to grant relief in relation to any act which it finds unlawful, including the award of damages to afford just satisfaction after taking account of any other relief or remedy. But the First Division's analysis breaks down at this point. There is no warrant in the words that section 100 uses for the conclusion that the time bar applies to proceedings that are brought under the Scotland Act on the ground that the act or failure to act is outside competence because it is incompatible with the Convention rights. The absence of any reference in section 100 to the section 7(5) HRA time bar is a plain indication to the contrary.
31. Acts or failures to act which are incompatible with the Convention rights are, in the language of the Scotland Act, outside competence. The fact that they are also unlawful for the purposes of the Human Rights Act (now that it is in force) does not weaken or undermine this point in any way. There are therefore two equally valid ways of addressing the incompatibility. It is open to the litigant to choose which of two alternative remedies he should pursue, even if the effect of doing so is to enable him to avoid a time bar that excludes one of them: Deutsche Morgan Grenfell Group plc v Commissioners of Inland Revenue  1 AC 558 (HL), para 51. A person who wishes to assert that an act or failure by a Scottish Minister is made unlawful by section 6(1) HRA must, of course, accept the system which that Act lays down for dealing with acts which that section makes unlawful, including the provisions in section 7(5) about time bar. A person who wishes to assert that the act or failure to act is outside competence in terms of the Scotland Act because it is incompatible with Convention rights must accept the limitations that are imposed by section 100 SA. But these limitations do not mention the section 7(5) time bar. The absence of a reference to that subsection indicates that it was the intention of Parliament to confine the limitations to those that were mentioned expressly.
(c) Section 57(3) SA
32. A further indication of what was intended by Parliament is to be found in section 57(3) SA. It extends to acts of the Lord Advocate in prosecuting any offence, and in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, the protection that is afforded to a UK public authority which acts in ways that are inextricably connected to primary legislation that are described in section 6(2) HRA. But it does not extend this protection to any other member of the Scottish Executive. A requirement that a person who complained that an act of the Scottish Ministers which gave effect to primary legislation which could not be read otherwise was outside competence because it was incompatible with the Convention rights must seek his remedy under the Human Rights Act on the ground that it was made unlawful by section 6(1) HRA would be contrary to the system that is indicated by this subsection read together with section 57(2). It would provide the Scottish Ministers with a defence under section 6(2), albeit in this admittedly highly unusual situation, which the devolution system that the Scotland Act lays down denies to them. To achieve consistency with that system a remedy must be available against the Scottish Ministers under the Scotland Act.
(d) Why no section 7(5) HRA time bar?
33. The question may then be asked, why did the Scotland Act omit any reference to the section 7(5)(a) HRA time bar in section 100(3)? The answer to this question is to be found in the fact that section 100(3) is concerned only with awards of damages. Section 7(5) on the other hand applies generally to all proceedings under section 7(1)(a) HRA, irrespective of the choice of remedy or remedies. To achieve consistency with the Human Rights Act on this point therefore the Scotland Act would have had to extend the time bar to all proceedings mentioned in section 100(1)(a) SA, irrespective of the choice of remedy or remedies. It was not suggested however by Mr Moynihan in the course of his argument that the Scotland Act should be read in this way. He accepted that the section 7(5)(a) HRA time bar did not apply where the remedy sought was the repetition of sums paid in response to a demand by the Scottish Ministers which was outside competence.
34. It is not difficult to see that to include in section 100(3) SA a time bar on the lines of section 7(5) HRA that applied only where a remedy was sought in damages would distort rather than ensure consistency between the two systems. It would also have introduced a significant difference between the treatment of acts or failures which were incompatible with the Convention rights and those which were outside competence for other reasons. No compelling reasons can be imagined for taking that step.
35. It is worth noting too the provisions of Section 102 SA. This section contemplates that a court or tribunal may be asked to decide whether an Act of the Scottish Parliament was within the legislative competence of the Scottish Parliament or the making, confirming or approval of subordinate legislation was within the devolved competence of the Scottish Ministers. It also contemplates that decisions on these issues may have retrospective effect. Yet it does not impose any special time limit on the bringing of proceedings that may produce that result. I find here a further indication that it was thought that the existing law provided sufficient means of preventing unreasonable delay in the bringing of proceedings in respective of both legislative and executive acts that were alleged to be outside devolved competence, and that a special time bar of the kind provided for by section 7(5)(a) HRA was unnecessary.
(e) R v HM Advocate
36. I have refrained so far from mentioning what I said in R v HM Advocate, 2003 SC (PC) 21 about the relationship between the two Acts. In para 43 I said that the precise relationship between them was still in the course of being worked out. I then dealt with the argument that had been advanced on behalf of the Lord Advocate that the machinery provided by the Scotland Act was not available for dealing with complaints about acts of the Lord Advocate in prosecuting offences and that such complaints could only be dealt with under the Human Rights Act. In para 51 I referred to section 100. I said that there would have been no point in enacting that provision if the only way in which an accused person could make such a complaint was by invoking the provisions of the Human Rights Act. It pointed to the opposite conclusion which was that it was under the provisions of the Scotland Act that he must seek his remedy. In para 60 I said that a power to award damages was clearly implied by section 100(3) SA, and I referred to the description in Clayton and Tomlinson, The Law of Human Rights, p 1416, para 21.13 of an award of damages in these circumstances as a public law remedy.
37. The complaint in R v HM Advocate was of unreasonable delay in the prosecution of certain charges on indictment by the Lord Advocate. The appellant sought the deletion of those charges from the indictment on the ground that the effect of section 57(2) SA was that Lord Advocate had no power to proceed with them because of his delay. The Lord Advocate's position was that, having regard to what he submitted was the meaning of the word "act" in section 57(2) SA, the appellant's complaint did not raise a devolution issue within the meaning of para 1 of Schedule 6 SA. He maintained that, for this reason, the Judicial Committee of the Privy Council did not have jurisdiction to deal with it. My observation that the accused's challenge in these proceedings had to be brought under the Scotland Act needs to be understood in that context.
38. The First Division said in its opinion in this case that I was mistaken in my construction of section 100 SA: paras 72, 76. But I see no reason to depart from what I said about section 100(1)(b) in R v HM Advocate. On the contrary, I am unable to accept their interpretation of that subsection or of section 100(3). Nor am I able to accept their interpretation of section 129(2). In my opinion, a careful and accurate reading of these two sections, taken together, provides ample support for the conclusion that Parliament intended that a person whose complaint was that an act or a failure to act of a Scottish Minister was outside competence because it was incompatible with the Convention rights should be able to seek a remedy on the ground that this was ultra vires in terms of the Scotland Act. They do not justify the contrary conclusion that he must do so, and can do so only, under the Human Rights Act. The limitations that the Human Rights Act imposes on the obtaining of such a remedy are only relevant to the extent that section 100 makes express reference to them. As section 100 does not mention the section 7(5) HRA time bar, that limitation does not apply to these proceedings as the petitioners' case is that the acts or failures to act were outside devolved competence within the meaning of section 54(3) SA.
39. I ought to mention, in fairness to their Lordships of the First Division, that the analysis that I have set out in the preceding paragraphs is not based on points made by Mr O'Neill in the course of his argument. He took his stand, without much further elaboration, on his understanding of what was said by myself and my noble and learned friend Lord Rodger of Earlsferry in R v HM Advocate. The First Division were right to treat what was said on this issue in that case as obiter. They had a great deal else to consider in the course of a hearing in their court which lasted for 12 days. And the state of the pleadings tends to obscure rather than reveal the strength of the petitioners' argument. Nevertheless I am in no doubt, after giving much further thought to the issue, that they were wrong not to follow the guidance that was offered in R v HM Advocate. I would hold that the petitioners' case that the acts and failures to act of the Scottish Ministers were outside competence is not subject to the section 7(5) HRA time bar.
40. Mr O'Neill submitted that, even if these proceedings were to be regarded as having been brought with reference to the Human Rights Act, section 7(5) did not apply because they were not proceedings "under this Act" for the purposes of section 7(1)(a) HRA. He advanced an argument, of which no prior notice had been given, to the effect that the petitioners' claim of damages should be regarded as having been brought under reference to section 7(1)(b) HRA, to which the time limit under section 7(5) does not apply. I do not need to deal with it in view of the opinion which I have formed on the main issue. If it had been necessary to do so, I would have favoured the answer to it which my noble and learned friend Lord Mance has indicated. As it is, I wish to reserve my opinion as to the precise relationship between these two paragraphs in the context of an argument about the scope of the section 7(5) HRA time limit.
Issue 2: whether section 54(3) SA applies to acts of the governor
41. Part 9 of the 1994 Rules deals with the security and control of prisoners. Among its provisions is rule 80 which deals with removal from association. The system which this rule lays down involves the making of orders by the governor and, in the case of removal from association for periods in excess of 72 hours, the granting of authority for its continuation by the Scottish Ministers.
42. Rule 80(1) provides that the governor may order in writing that a prisoner shall be removed from association with other prisoners either generally or during any period he is engaged or taking part in a prescribed activity. Rule 80(5) provides that a prisoner who has been removed from association by virtue of an order made by the governor shall not be subject to such removal for a period in excess of 72 hours from the time of the order except where the Scottish Ministers have granted written authority on the application of the governor. Rule 80(6) provides that an authority granted by the Scottish Ministers under rule 80(5) shall have effect for a period of one month from the expiry of the period of 72 hours but that they may, on any subsequent application by the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority.
43. The periods of segregation that are in issue in each of these cases extended over periods in excess of 72 hours. In each case decisions were made by a governor that the petitioner should be removed from association. In each case the governor made application to the Scottish Ministers for authority to continue to hold the petitioner under rule 80 conditions for further periods, and written authority to do so was granted by the Scottish Ministers.
44. The Scottish Ministers submit that the powers that are given to the governor by rule 80 are given to him as governor in his own right and not to him in the exercise of functions by the Scottish Ministers. The practical significance of this issue is that complaints that the governor has acted in a way which is incompatible with the Convention rights cannot, if this submission is well founded, be brought under reference to the Scotland Act. They would have to be brought under section 7(1)(a) HRA, with the result that they would be subject to the section 7(5)(a) HRA time bar irrespective of the decision which your Lordships reach on issue 1. The First Division held however that the cumulative effect of the provisions of the Scotland Act regarding the functions relating to prisons that were transferred to the Scottish Ministers was that a governor, as an appointee of the Scottish Ministers, is circumscribed by the same limits of competence as his appointer: para 25.
45. At first sight there is force in the proposition that a governor who is exercising powers given to him by the 1994 Rules is acting in his own capacity as governor and is not subject to the direction or control of the Scottish Ministers. On this view the Scottish Ministers would not be answerable for his decisions on the principle that was explained in Carltona Ltd v Commissioners of Works  2 All ER 560. The application of that conclusion to the facts of this case seems to me less clear, however. There are two reasons for taking this view.
46. The first arises out of the way the petitioners' case is put in their pleadings. Their case is a cumulative one. It is directed both to the orders made by the governors and to the grants and renewals of authority by the Scottish Ministers. The argument that proceedings cannot be taken with reference to section 54(3) with respect to orders made by the governors does not affect the case made with respect to the grants and renewals of authority by the Scottish Ministers. It is unclear at this stage, prior to an analysis of the facts established by the evidence, whether and if so to what extent the remedies that the petitioners seek are dependent upon acts of the governors as distinct from acts of the Scottish Ministers.