Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Etc
47. The second arises out of the definition that is contained in rule 3 of the 1994 Rules of the word "governor". For the purposes of rule 80, among other rules, it extends not only to the governor in charge and the deputy governor but also to any authorised unit manager and, when none of these other officers is present, to the most senior officer who is present in the prison at that time. The extent of this definition lends support to the view which the First Division took on this issue, that it falls to be determined by examining the functions regarding prisons and their organisation and management that were transferred to the Scottish Ministers by the Scotland Act and not by looking exclusively to the functions that the 1994 Rules provide are to be exercisable by governors.
48. On balance however I agree with Lord Rodger that the fundamental point is that whoever is acting as governor for the purposes of rule 80 at the relevant time is exercising a different function from that exercised by the Scottish Ministers, who are not responsible for any order he makes under that rule. It follows that the First Division's conclusions that the governor, in making his order, was subject to the same vires control as the Scottish Ministers and that no distinction fell to be made between him and the Scottish Ministers on the issue of time bar were unsound.
Issue 3: when time begins to run under section 7(5)(a) HRA
49. Section 7(5)HRA applies only to proceedings that are brought against a public authority under section 7(1) by a person who claims that it has acted, or proposes to act in a way which is made unlawful by section 6(1). It provides:
The wording of section 7(5)(a) contemplates that an "act" is a single event which occurred on a particular date. No express provision is made for an act which extends over a period of time, such as is said to have occurred in these cases as a result of the decisions taken under Rule 80 of the 1994 Rules.
50. The Scottish Ministers contended that time began to run against the petitioners under section 7(5)(a) HRA from the commencement of any period of segregation and that it was interrupted only by the service of the petition in which the segregation was complained of. The Advocate General supports this approach, on the view that the relevant acts were the decisions of the governor to order segregation. These were, he submits, one-off acts with continuing consequences. The First Division agreed that the proceedings were interrupted only by service of the petition. But they held that these were continuing acts and that time began to run only on the expiry of the relevant period of segregation. This was on the view that the relevant consideration was not only the decision to subject the petitioner to this regime but also the practical effect of the decision on the petitioner: para 86. They sustained the Scottish Ministers' plea of time bar in so far as it was directed towards Henderson's first four periods of segregation. Quoad ultra they allowed his petition to proceed and those at the instance of Cairns and Blanco. There was no plea of time bar in Somerville's case or that of Ralston.
51. This issue will be rendered academic if, as I would hold, the time bar in section 7(5)(a) HRA does not apply to these proceedings as presently drafted because the petitioners' case is that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act. If it is necessary to express an opinion on it, however, I would hold that the phrase "the date on which the act complained of took place" in section 7(5)(a) means, in the case of what may properly be regarded as a continuing act of alleged incompatibility, that time runs from the date when the continuing act ceased, not when it began. Otherwise it would not be open to a person who was subjected to a continuing act or failure to act which was made unlawful by section 6(1) HRA to take proceedings to bring it to an end without relying on section 7(5)(b) while it was still continuing after the expiry of one year after its commencement. I would also hold that, so long as the proceedings are brought within the time permitted by section 7(5)(a) and any longer period allowed under section 7(5)(b), damages may be awarded as just satisfaction for the whole of the period over which the continuing act extends, including any part of it that commenced before the period of one year prior to the date when the proceedings are brought.
52. The position would be different, for the reasons given by Lord Mance, if the orders and authorisations complained of were to be seen as a series of acts with continuing consequences. But the question whether the acts complained of in these cases are continuing acts or one-off acts with continuing consequences is not easy to determine on the petitioners' pleadings. Decisions of the Strasbourg court indicate that it tends to analyse situations such as these as one-off acts with continuing consequences, rather than as continuing breaches of the Convention: see eg Camberrow MM5 AD v Bulgaria (App. no. 50357/99, 1 April 2004), p 17; Blecic v Croatia ( App. No. 59532/00, 8 March 2006), paras 85, 86. This is not a rule of law, however. Each case must be viewed on its own facts. The question how the petitioners' cases ought to be viewed in the light of this jurisprudence would require more careful examination if the section 7(5) HRA time limit applied to them. I would prefer to reserve my opinion upon it in view of the answer which I would give to the first issue.
Issue 4: proportionality
53. The remedies which the petitioners seek are set out in statement 3 of their petitions. Included as statement 3(a) in each case is a prayer for a declarator that the orders and grants and renewals of authority authorising the general segregation of the petitioners under rule 80 of the 1994 Rules were "disproportionate et separatim unreasonable and therefore unlawful." In statement 11 in Somerville's case it is averred that the decision on the part of the Scottish Ministers to make provision for the effective imposition of a punishment regime in segregation as the only means of management, control and containment of prisoners involved a disproportionate interference with his rights under article 8 of the Convention to respect for his psychological integrity, personal development and autonomy and self-determination and to his physical and moral security. In statement 12 of his petition it is averred that the decisions of the governors and the purported decisions of the Scottish Ministers to segregate and continue to segregate him were in all the circumstances disproportionate et separatim unreasonable and unlawful. His plea in law is to the same effect. Similar averments and pleas in law are contained in the petitions of the other petitioners.
54. The Lord Ordinary held that the law did not recognise proportionality as an independent ground for judicial review of administrative action and she excluded the averments which raised this issue from probation. Before the First Division counsel for the Scottish Ministers indicated that the issue was unlikely to be of any practical importance as the proportionality of the Scottish Ministers' actings might require to be addressed in the context of the petitioners' cases under article 8 of the Convention. They were content to have the whole averments and pleas about proportionality remitted to proof before answer. The First Division decided nevertheless to hear argument on this issue. Having done so, they rejected the petitioners' submission that the law recognised proportionality as a criterion by which to test the validity of administrative action generally: para 124. They also rejected the petitioners' subsidiary argument that it had been recognised as a criterion for dealing with alleged infringement of common law fundamental rights including the right to liberty. They excluded from probation the words "disproportionate et separatim" where they appear in statement 3(a) and repelled the petitioners' first pleas in law so far as relating to proportionality. The word "unreasonable" had already been excluded from probation by the Lord Ordinary.
55. In the discussion before your Lordships Mr Moynihan again submitted for the Scottish Ministers that the issue whether proportionality was an independent ground for judicial review was academic at this stage and in the events that had happened, and that it was unnecessary to reach a decision on it. But he also submitted that, were it necessary to deal with the issue, your Lordships should hold that the proposition that it was an independent ground of judicial review was not supported by authority. There was a material difference between the grounds of review described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 and R v Ministry of Defence, ex p Smith  QB 517 and the approach of proportionality in respect of review with regard to Convention rights: R (Daly) v Secretary of State for the Home Department  2 AC 532, para 26, per Lord Steyn. Such authority as there was indicated that a decision that proportionality was a ground for judicial review in addition to Wednesbury unreasonableness would give rise to much uncertainty. He referred to Lord Walker of Gestingthorpe's observation in R (ProLife Alliance) v British Broadcasting Corporation  1 AC 185, para 144, that the Wednesbury test, for all its defects, has the advantage of simplicity.
56. In my opinion it would not be appropriate for your Lordships to seek to reach a decision on this issue in the circumstances of this case. The issue of proportionality will have to be considered in the context of the petitioner's complaint of an infringement of their article 8 Convention rights. It is unclear what need, if any, there will be for an examination of this issue independently of that complaint. As Mr Moynihan pointed out and their pleas in law make clear, the petitioners' claim for damages is confined to what would be necessary to afford just satisfaction within the meaning of section 8(3) HRA: see R (Greenfield) v Secretary of State for the Home Department  1 WLR 673, para 19, per Lord Bingham of Cornhill. I have in mind too that, subject to the question of time bar, these petitions have already been sent to proof before answer on other issues and that the pleadings may be subject to further amendment, with the leave of the court, before the proof takes place. All these factors indicate that this is not the occasion to embark on an examination of this issue, which is plainly one of considerable importance and difficulty. I would allow the averments directed to the question of proportionality to go to proof before answer.
Issue 5: inspection by the judge of redacted documents
57. In each case the Lord Ordinary granted a commission and diligence for the recovery of documents in the hands of the Scottish Ministers called for in various specifications of documents lodged by the petitioners. The Scottish Ministers produced several hundred documents in response to these calls. But in many cases parts of these documents were blacked out, or redacted, so as to delete various details and in some cases entire documents were blanked out. This was done because the Minister for Justice in the Scottish Executive was of the opinion that the disclosure of these parts would be contrary to the public interest because it would cause real harm to the work of the Scottish Prison Service. Public interest immunity certificates were lodged in each case which gave reasons for the view which she had formed with the assistance of Mr Michael Duffy, the Director of Prisons in the Scottish Prison Service, whose affidavit giving his reasons was also lodged, and of other officials in the SPS.
58. The petitioners insisted nevertheless on seeking to recover these documents in an unredacted form, except in so far as the redacted parts disclosed the identities of persons referred to in the PII certificates. By agreement between the parties, counsel for the petitioners were permitted to consider the redacted parts of the documents so that they could be informed of their contents. This was done in accordance with a protocol which provided that they would not disclose their contents to any other person except to the extent to which the court should decide that the document should be disclosed notwithstanding the assertion of PII.
59. The question as to the extent to which the documents should be recovered in an unredacted form then came before the Lord Ordinary for a hearing in camera. On 8 February 2005 the Lord Ordinary, having heard submissions from the parties, refused to order that the documentary material covered by the PII certificates be produced for inspection by the court or to the petitioners. In the reasons that she gave for this decision she explained that counsel for the petitioners, despite having seen the material sought, did not specifically identify any document or part of a document as being required for the furtherance of any specific issue in any one of the individual cases. She said that it was not obvious that evaluation of intelligence material would have any bearing on the cases that were pled. She concluded that the petitioners had not made out a case that the material sought was likely to give substantial support to any specific issue identified in their cases.
60. The First Division agreed with the Lord Ordinary and adhered to her interlocutor. They did not accept that counsel for the petitioners was inhibited by the protocol from pointing to specific averments of either party which disclosure of the redacted passages would serve to prove or disprove and without which the petitioner would be deprived of the means of proper presentation of his case. Yet no attempt had been made to direct the Lord Ordinary's attention to any averment the proof of which depended on or would be advanced by disclosure of any redacted passage. They said that there was good reason for a procedural requirement that the court should be satisfied at the outset that there was sufficient justification for considering unredacted material: para 20.
61. I would be reluctant to interfere with a decision of the Court of Session on a mere matter of procedure: see Girvan v Inverness Farmers Dairy, 1998 SC (HL) 1, 21. But the issue raises an important matter of principle on which it is proper that your Lordships should give guidance. I also think that the decision of the Court of Session on this issue was based on a misconception of the context in which the Lord Ordinary was being asked to examine the redacted material in the light of the reasons that had been given for the PII certificates.
62. Dealing first with the context, the issue as to whether or not the redacted material ought to have examined by the Lord Ordinary should have been determined in the light of the fact that all the documents in respect of which the PII certificates had been lodged had been produced in answer to calls in specifications of documents approved by the court. The information which they contain appears to be directly relevant to the claims made by the petitioners. The assumption must be that, but for the PII certificates, these documents would all have been released in an unredacted form to the petitioners. The issue for the Lord Ordinary therefore was not whether disclosure of those documents would have a bearing on the case that had been pled or would assist the petitioners in proving or disproving matters that had been raised in the pleadings. It was whether sufficient reasons had been given by the Minister for Justice in her PII certificates in the public interest for withholding the redacted material.
63. As for the procedure that ought to have been adopted, the issue as to whether the withholding of this material was justified by the PII certificates was for the Lord Ordinary herself to determine. The court must always be vigilant to ensure that public interest immunity of whatever kind is raised only in appropriate circumstances and with appropriate particularity: Balfour v Foreign and Commonwealth Office  1 WLR 681, 688, per Russell LJ. The balance between the interests of justice, which favour disclosure, and the public interest which the Minister for Justice asserts, which favours withholding the material and to which due weight must be given in view of its subject matter, was for her to assess. I do not see how she could properly perform this task without examining the documents herself in this case. The White Book 2007, para 31.3.33, dealing with the practice in England and Wales, states that it is generally best if the judge should see the documents before ordering production, and if he thinks that the minister's reasons for refusing production are not clearly expressed he will have to see them too before ordering production. I agree with Lord Mance that the judge could only sensibly determine the matters in issue by inspecting the documents.
64. I have every sympathy for the Lord Ordinary in the task that confronted her. It was not made easier by the volume of material that needed to be considered. Nevertheless it was a task that had to be performed by the court in view of the assumption that must be made that, had it not been for the PII certificates, the documents would have been released in their unredacted form to the petitioners. I would recall the relevant interlocutors and order that the documents be produced for inspection by the Lord Ordinary.
65. I agree with Lord Rodger that the course which these cases have taken fits uneasily with the nature and purpose of judicial review according to the procedure that was introduced in response to Lord Fraser of Tullybelton's initiative. The working party that was set up on 27 April 1983 in response to his observations was asked "to devise and recommend for consideration a simple form of procedure, capable of being operated with reasonable expedition": see West v Secretary of State for Scotland, 1992 SC 385, 403-404. The rules which are now set out in chapter 58 of the Rules of the Court of Session 1994 were intended to achieve this. As a result the degree of precision and detail in written pleadings that has traditionally been looked for in other forms of action in Scotland is not to be looked for in petitions for judicial review: Clyde and Edwards, Judicial Review (2000), para 23.19. The core requirement is simply this. The factual history should be set out succinctly and the issues of law should be clearly identified. The aim is to focus the issues so that the court can reach a decision upon them, in the interests of sound administration and in the public interest, as soon as possible. The fact that these aims have not been achieved in this case is as obvious as it is regrettable. I join with my noble and learned friend in expressing the hope that, in the light of all that has happened to date, these cases will be brought to trial as speedily as possible.
66. I would allow the petitioners' appeal on the first, fourth and fifth issues and the Scottish Ministers appeal on the second issue. I would find that a claim for damages as just satisfaction in respect of an act by a member of the Scottish Executive which is outside devolved competence because it is incompatible with a Convention right is not subject to the provisions of section 7(5) HRA.. I would recall the interlocutor of the First Division in Henderson's case in so far as it sustained the plea of time bar so far as directed to the first four periods of segregation and excluded his averments in respect of those periods from probation. I would recall the interlocutors of the First Division in each case in so far as they excluded from probation in each petition the words "disproportionate et separatim" where they appear in statement 3(a) and repelled the first plea in law so far as relating to proportionality. I would also recall its interlocutor in each case in so far as they adhered to the terms of the Lord Ordinary's interlocutor of 8 February 2005 in which she refused to order that the documentary material covered by the PII certificates be produced for inspection by the court or to the petitioners. I would recall that part of the Lord Ordinary's interlocutor in each case and direct that the documentary material be produced for inspection by the Lord Ordinary. Otherwise I would adhere in each case to the First Division's interlocutor.
LORD SCOTT OF FOSCOTE
67. I have had the great advantage of reading in advance the opinions prepared by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry and gratefully adopt their exposition of the circumstances in which the five issues identified in the agreed Statement of Facts and Issues (see para 2 of Lord Hope's opinion) arise.
68. The first (and main) issue is whether a claim for damages based on an alleged breach of a Convention right by a member of the Scottish Executive is subject to the time limits prescribed by section 7(5) of the Human Rights Act 1998. This issue, on which I confess I have changed my mind more than once, depends upon the construction and effect of section 100 of the Scotland Act 1998 and, particularly, subsection (3) of that section. A review of the relevant provisions of the Human Rights Act 1998 (the HRA) and the Scotland Act 1998 (the SA) is repetitive, for Lord Hope and Lord Rodger have already carried out the exercise, but unavoidable if my conclusions on the issue are to have any coherence.
69. Both Acts received the Royal Assent in 1998 but whereas the sections of the SA relevant to this appeal came into effect in May 1999, the relevant sections of the HRA did not come into effect until 2 October 2000, some 17 months later. This gap explains section 129(2) of the SA which provides that each of a number of specified provisions of the SA including section 57(2) and (3) and section 100 -
70. The relevant sections of the HRA are, for present purposes, sections 6, 7 and 8. Section 6(1) declares it to be " unlawful for a public authority to act in a way which is incompatible with a Convention right". Sections 7 and 8 flesh out the consequences.
71. Section 7(1) enables a person who complains that a public authority has acted in a way made unlawful under section 6(1) and who is a victim of the unlawful act complained of either to bring proceedings against the authority or to "rely on the Convention right or rights concerned in any legal proceedings". There has been some discussion in the hearing of this appeal about the scope of the respective alternatives offered by section 7(1). For my part, I think their effect is clear. The victim can rely on the alleged unlawfulness either in proceedings against the authority that he, the victim, has brought - either by commencing an action or by making a counter-claim in an action the authority has commenced - (subsection (1)), or as a defence in proceedings commenced by someone else, usually but not necessarily the authority, in which he, the victim, has become a party, usually but not necessarily as a defendant (subsection (2)). Subsection (5) of section 7 provides a time limit. Proceedings brought by the victim under subsection (1)(a) must be commenced within one year of the date on which the act complained of took place, or such longer period as the court may consider it equitable to allow, n.b. that reference to an "act" includes a "failure to act" (see s.6(6)). Mr O'Neill QC, counsel for the appellants, had a late new point, namely that proceedings claiming relief against a public authority for an alleged breach of Convention rights could be brought free from the time limits prescribed by section 7(5) provided it were combined with some other claim. In such a case, he suggested, the proceedings would fall under section 7(1)(b), not under section 7(1)(a). I am afraid that, like most last minute thoughts, this was a bad one. It is section 7(1)(a) that enables claims against public authorities for breach of Convention rights to be brought, whether that claim stands alone or is joined with other claims. The restraints imposed by section 7(5) cannot be so easily side-stepped.
72. Section 8(1) of the HRA enables the court in relation to "any act (or proposed act) of a public authority which the court finds unlawful" to grant such remedy "as it considers just and appropriate". But subsection (3) bars an award of damages unless the court "is satisfied that the award is necessary to afford just satisfaction " to the claimant, and subsection (4) requires the court, when determining the amount of the award, to take into account the principles applied by the European Court of Human Rights.
73. The SA, as Lord Hope has explained, makes careful provision for the consequences of devolving legislative and executive power to institutions with limited competence. One of the limitations on the legislative competence of the Scottish Parliament and on the legislative and executive competence of the Scottish Ministers and the Scottish Executive is that nothing is to be done that is "incompatible with any of the Convention rights or with Community law" (see s.29(1) and (2)(d), s.54(2) and s.57(2) of the SA). A consequence of these provisions is that an act done by the Scottish Executive that was incompatible with a Convention right (bar a few exceptions irrelevant to this appeal that I shall forbear to explore) would necessarily be ultra vires, outside devolved competence. It would be an unlawful act for HRA purposes but would also be unlawful under ordinary Scottish law, as are all ultra vires acts done by public authorities with limited powers.
74. I can now come to section 100 of the SA -