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Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Etc
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)
Blanco (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)
Henderson (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)
Ralston (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland)
 UKHL 44
LORD HOPE OF CRAIGHEAD
1. The petitioners in these four applications for judicial review were all serving sentences of imprisonment. Two of them, Ralston and Somerville, are still in custody. Common to all the applications is a complaint about the lawfulness of their removal from association (referred to colloquially as "segregation") under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 ("the 1994 Rules"). The proceedings are still at the interlocutory stage. No final orders have yet been made. Instead a number of issues of law have been identified which it was thought helpful to have determined before any evidence was led. Some of them were resolved by the First Division of the Court of Session (the Lord President (Hamilton), Lord Macfadyen and Lord Nimmo Smith) after hearing argument on reclaiming motions in each case from decisions on them by the Lord Ordinary (Lady Smith):  CSIH 52; 2007 SC 140. But five issues remain, for the determination of which the Inner House gave leave to the parties to appeal from its decision to your Lordships.
2. These issues, as identified by the Statement of Facts and Issues, are as follows:
The first, fourth and fifth of these issues were decided by the First Division in favour of the Scottish Ministers. The second and third issues were decided by the First Division in favour of the petitioners.
3. At the heart of the first three issues is a dispute about time bar. Section 7(5) of the Human Rights Act 1998 ("HRA") provides that proceedings by a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) HRA because it has acted in a way which is incompatible with a Convention right must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court considers equitable having regard to all the circumstances. The Scotland Act 1998 ("SA") does not contain any time limit of its own within which proceedings in which it is alleged that a member of the Scottish Executive has acted outside his devolved competence in terms of that Act must be brought. Your Lordships were informed that a large number of other cases involving the segregation of prisoners are awaiting a decision on this issue. It would however be rendered academic in the case of a complaint against the act of a governor if, as the Scottish Ministers contend, his act is not to be regarded as an act of the Scottish Executive.
4. It is unnecessary to say much about the facts of these cases. Somerville, Henderson and Blanco complain of events that had been concluded before they brought proceedings. They seek various declarators in respect of past periods of segregation. The only live issue in their cases is their claim for damages as just satisfaction for a breach of their article 8 Convention rights. Ralston was still being held in segregation on 17 April 2003 when the first order in his petition was granted, and he was again segregated during the dependence of his application. Among the remedies he seeks, in addition to various declarators and damages as just satisfaction for a breach of his article 8 Convention rights, is an order ad factum praestandum to end his segregation. In the Court of Session there was a fifth petitioner, William Cairns, but he has not appealed against the orders that were made in his case. None of the petitioners claims damages as a delictual remedy at common law founded either in negligence or on a breach of statutory duty independently of a breach of their Convention rights.
5. The issue as to whether the section 7(5)(a) HRA time bar applies to these applications has not been raised in the cases of Somerville or Ralston. This is because they complain of segregation within one year of the date when they brought proceedings. It has been raised however in the cases of Henderson and Blanco. Four of the ten periods of segregation for which Henderson seeks damages as just satisfaction were concluded more than one year before his proceedings were brought on 9 June 2004. Blanco commenced proceedings on 6 November 2003. Segregation took place in his case, as a result of a series of orders made over time, between 1 August 2002 and 7 January 2003. His case also raises the question which is addressed as issue 3. If, as he maintains, the time bar runs from the end of his segregation, no part of his claim is time barred. If, as the Scottish Ministers maintain, time runs from the beginning of each period of segregation, his claim is restricted to that part of his segregation that is attributable to decisions made on 11 November and 10 December 2002.
6. The question whether the section 7(5)(a) HRA time bar applies also affects the second issue. Each period of segregation of which complaint is made was initiated by an order made by the prison governor under rule 80(1) of the 1994 Rules. It is not disputed that the governor of a prison is a public authority for the purposes of section 6(1) HRA. It is accepted that it would be unlawful for a governor to make an order under rule 80(1) which was incompatible with a prisoner's Convention rights. The question is whether an act of a governor comes within sections 54(3) or 57(2) SA which limit the competence of members of the Scottish Executive. The practical importance of this question is that the consequences of the time bar on proceedings under section 7(1)(a) HRA will be avoided if proceedings with regard to acts of the governor can be brought under the Scotland Act on the ground that when he is making and giving effect to orders under rule 80 of the 1994 Rules he is a member of the Scottish Executive.
7. Each of the petitions contained averments that the respondents' decisions were unreasonable and disproportionate. The Lord Ordinary excluded from probation the averments that the decisions were unreasonable in the Wednesbury sense. The petitioners have not appealed against that decision. Their argument that the decisions were not proportionate must be taken to be addressed to a higher level of scrutiny than that which is undertaken in judicial review on the ground of unreasonableness. The Scottish Ministers accept that proportionality is relevant to a consideration of the petitioners' Convention rights arguments. But they maintain that the question whether the common law might afford a broader ground of judicial review on the ground of proportionality does not arise as a practical issue in these cases, as the petitioners do not seek a delictual remedy in damages but confine their claims to a just satisfaction remedy.
8. The issue which has been raised in these proceedings about public interest immunity is an issue of procedure. In each case the Lord Ordinary granted a commission and diligence for the recovery of various documents falling within the terms of an approved specification of documents. A substantial amount of material has been disclosed, subject to the assertion in relation to certain specific information of public interest immunity. The question relates to the procedure that should be followed where public interest immunity is asserted as an objection to disclosure. In particular, it is whether it was necessary for the Lord Ordinary to have inspected the documents herself before coming to a conclusion on production. She decided, having heard argument but without inspecting them, not to order production. The petitioners maintain that she was bound to inspect them. The Scottish Ministers submit that her decision not to inspect the documents unless she was persuaded that there was a good reason for doing so was a discretionary one, and that she was entitled to have regard to the circumstances of the case when she was exercising her judgment.
9. There is one other matter of background that needs to be mentioned. A proof before answer was allowed on the adjusted pleadings on 10 February 2004. On 30 June 2004 the court assigned 26 October 2004 and the following five weeks as a diet for the proof before answer. On 15 October 2004, in view of a problem that had arisen in obtaining expert evidence, the diet of proof was discharged. It was decided to use the time that had been set aside for it by debating various issues of law that the parties had identified. Some of the issues that were identified are more suited to this procedure than others. No evidence has yet been led, and the elaborate and repetitive pleadings are still capable of further amendment, with the leave of the court, before that stage is reached. This has resulted in a situation which, as my noble and learned friend Lord Walker of Gestingthorpe points out, is far from satisfactory. The function of this House is to decide issues of law that have been clearly focused by the proceedings in the courts below, not to deliver opinions on issues that may turn out to be of academic interest only. The fact that your Lordships have entertained this appeal must not be taken as an endorsement of the way in which the issues have been dealt with in the pleadings.
Issue 1: the relationship between the Scotland Act and the Human Rights Act
10. This issue arises on the pleadings in the cases of Henderson and Blanco as an issue about time bar. But it is an issue of much wider significance. Anybody who wishes to bring any proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on any of the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 HRA or whether he must do so, or can do also, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about incompatibility with the Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise.
11. Reduced to its simplest terms, the question is whether both Acts apply where a remedy is sought on the ground of incompatibility with the Convention rights with regard to an act or a failure to act of a member of the Scottish Executive that is said to be outside devolved competence; or whether only one or the other Act applies and, if so, which of them. As Mr Moynihan QC for the Scottish Ministers put it, can the Scotland Act be read as conferring a cause of action in damages to afford just satisfaction which is independent of that afforded by the Human Rights Act? It was unlikely, he said, that Parliament intended to confer an alternative remedy against the devolved institutions which was inconsistent with that provided by the Human Rights Act. The way these propositions were expressed underlines the fact that the issue is one of statutory construction. It is idle to speculate as to whether it is likely or unlikely that Parliament intended that a just satisfaction remedy was to be available under the Scotland Act without saying so expressly. The answer is to be found in the words used by the statutes, to which careful attention must be paid in order to discover the intention of Parliament.
12. Section 6(1) HRA makes it unlawful for a public authority, other than in ways that are inextricably connected to primary legislation as described in section 6(2), to act in a way which is incompatible with a Convention right. The expression "public authority" extends to governmental organisations such as members of the Scottish Executive: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, para 47. An "act" includes a failure to act: section 6(6). Sections 7 and 8 HRA give effect to the principle that acts of a public authority in breach of a Convention right are unlawful. Section 7 provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may bring proceedings in the appropriate court or tribunal or rely on the Convention right on in any proceedings, and section 8 makes provision for judicial remedies. Sections 7 and 8 contain various limitations on the obtaining of these remedies, one of which is to be found in section 7(5). This subsection provides that proceedings against the authority must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.
13. Two features of the Human Rights Act are fundamental to a proper understanding of its place in the legislative framework. The first is that it does not disturb the principle of the sovereignty of Parliament. A finding that primary legislation is incompatible with a Convention right does not affect its validity: section 3(6) HRA. Subject to the power that is given to minsters to make remedial orders under section 10, it is left to Parliament to decide, in the light of a declaration of incompatibility, what should be done about it. An act or failure to act of a public authority is not unlawful if, as a result of primary legislation, the public authority could not have acted differently or it was acting so as to give effect to primary legislation which cannot be read in a way that is compatible with the Convention rights: section 6(2) HRA. The second feature is that the language that it uses to describes acts or failures to act that are incompatible with the Convention rights is that they are "unlawful": sections 6(1), 7(1), 8(1). Unlawfulness in terms of the Human Rights Act has certain consequences with regard to what can be obtained by way of a remedy. This is because the Human Rights Act makes the acts or failures to act unlawful in domestic law.
14. The Scotland Act, on the other hand, is concerned with the consequences of devolving legislative and executive power to institutions which have limited competence. Sections 29 and 30 and Schedules 4 and 5 define the legislative competence of the Scottish Parliament. The executive competence of the Scottish Ministers is limited in exactly the same way as that of the Scottish Parliament. Section 52 enables statutory functions to be conferred on the Scottish Ministers by the Scottish Parliament within its area of devolved competence. Section 29(1) SA provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. The effect of this provision is that the Scottish Ministers have no power to exercise functions that may be conferred on them which are outside the legislative competence of the Scottish Parliament. Section 53 provides for the transfer of functions previously exercisable by Minsters of the Crown to the Scottish Ministers, but only in so far as they are exercisable within devolved competence. The expression "devolved competence" is defined by section 54. Subsection (2) of that section restricts the devolved competence of the Scottish Ministers with regard to making, confirming or approving of subordinate legislation to what would be within the legislative competence of the Scottish Parliament. Subsection (3) imposes the same restriction on the devolved competence of the Scottish Ministers in the case of the exercise of any other function that they may exercise under a pre-commencement statute.
15. Section 57(2) SA reinforces, in the context of provisions about the devolved competence of the Scottish Ministers generally, the restriction that section 29(2)(d) imposes on the legislative competence of the Scottish Parliament. It provides that a member of the Scottish Executive "has no power" to make any subordinate legislation, or to do any other act, so far as the legislation or other act is incompatible with any of the Convention rights or with Community law. Section 57(3) qualifies that restriction in the case of an act of the Lord Advocate in prosecuting an offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, so as to align his position with that of the equivalent authorities in England and Wales. It does so by providing that section 57(2) does not apply to an act of the Lord Advocate in that capacity if, because of section 6(2) HRA, it would not be unlawful under section 6(1) HRA. That qualification on the limits of devolved competence does not apply to any other member of the Scottish Executive or to the Lord Advocate acting in any other capacity. It is not open to them to claim that the act or the failure to act was within devolved competence because, as a result of primary legislation, they could not have acted differently or they were acting so as to give effect to primary legislation which cannot be read in a way that is compatible with the Convention rights. The petitioners rely in their pleadings only on section 57(2) SA. But Mr O'Neill QC for the petitioners said in the course of his submissions to your Lordships that, as this case concerns the exercise of functions under a pre-commencement statute, he wished to rely also on section 54(3).
16. Fundamental, therefore, to a proper understanding of the Scotland Act is its concentration on the limits of devolved competence. There are, of course, other limits on devolved competence in addition to those that are imposed with reference to Community law and to the Convention rights. For example, as section 29(2)(a) makes clear, devolved competence is exercisable only within or with regard to Scotland. Schedule 5 contains a list of matters reserved to Parliament at Westminster, which lie outside the devolved competence of the Scottish Parliament and the Scottish Executive. The provisions about Community law and the Convention rights give effect in the devolved system to the consequences for domestic law of the European Communities Act 1972 and of the incorporation of the Convention into domestic law of the United Kingdom by means of the Human Rights Act by placing restrictions on the functions that the devolved institutions can competently exercise. So an act by a member of the Scottish Executive which is incompatible with the Convention rights is not described by the Scotland Act as "unlawful". It is described instead as "outside devolved competence" in section 54(3), and as something that he has "no power" to do in section 57(2). The machinery described in section 98 and Schedule 6 SA is available for the resolution of questions as to whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with Community law and any other questions as to whether a function is exercisable within devolved competence.
17. The Scotland Act may reasonably be expected therefore to contain everything that is needed by way of legislation for the proper working out of the system that it lays down. It has not been suggested that it lacks anything that is needed to give effect to the restrictions on devolved competence in any respect other than in regard to the Convention rights. It can be assumed that in every other respect the Act was drafted against the background of the remedies that are available in domestic law to deal with acts that are outside the competence of any body that is exercising powers given to it by statute, informed by decisions of the European Court of Justice as to the need for a domestic remedy in the case of acts that are incompatible with Community law: Francovich v Italian Republic (Joined Cases C-6/90 and 9/90)  ICR 722;  ECR I-5357; R v Secretary of State for Transport, Ex p Factortame Ltd (No 5)  1 AC 524; Sempra Metals Ltd v Commissioners of Inland Revenue  UKHL 34;  3 WLR 354 (HL). It did not need to make provision for them because these remedies were already available.
18. Moreover, in the case of acts or failures to act that are incompatible with the Convention rights, the Scotland Act contains its own system for dealing with the incompatibility in a way that gives effect to the Convention. The system is the same as that for any other act or failure to act that is said to be outside devolved competence. A statutory authority has no power to do anything that is outside its competence. Issues as to whether or not an act or a failure to act is outside devolved competence because it is incompatible with the Convention rights are treated as devolution issues for the purposes of section 6, in the just same way as any other act or failure to act. The same remedies were assumed to be available as in the case of any other ultra vires act. These include the remedies of declarator and interdict and for the recovery of money paid in response to a demand made without statutory authority on the ground of unjustified enrichment: Morgan Guaranty Trust Company of New York v Lothian Regional Council, 1995 SC 151. They also include the remedy of damages which the Convention provides as just satisfaction for breach of a Convention right.
19. The wording of section 100 SA indicates that it was drafted on the assumption that the court may grant such relief or remedy as it considers appropriate. Section 100(1) provides that the Act "does not enable" a person to seek these remedies unless he would be a victim for the purposes of article 34 of the Convention. As a general rule, the fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified: Stair Memorial Encyclopaedia, vol 1, Administrative Law, para 333; see also F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry  AC 295, 359H, per Lord Wilberforce. But the invalidity that is in point here is incompatibility with a Convention right, and questions as to what remedies are available for the incompatibility depend on what was intended by Parliament. Section 100(3) SA shows what Parliament intended. It assumes that damages for just satisfaction may be claimed in respect of an act which is outside devolved competence because it is incompatible with a Convention right. It provides that the Act "does not enable" a court or tribunal to award any damages which "it could not award" under sections 8(3) and (4) HRA. This makes it clear that a common law claim of damages for breach of statutory duty is excluded. The remedy is limited to what is necessary to afford just satisfaction. There would have been no point in making this provision if the court could not award damages at all as a remedy. The criminal courts in Scotland have no power to award damages, so it was not necessary for the negative provision expressed in section 8(2) HRA to be reproduced in the Scotland Act. Section 100(3) also makes it clear that it is because the act is outside competence within the meaning of the Scotland Act, not because it is unlawful within the meaning of section 6(1) HRA, that the person is assumed to be entitled to seek the just satisfaction remedy.