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)(Consolidated Appeals)

An act of the Scottish Ministers which is incompatible with a Convention right may be challenged both as unlawful under the Human Rights Act 1998 and as outside devolved competence under the Scotland Act 1998. Proceedings brought on the latter basis are not subject to the one-year limit in section 7(5) of the Human Rights Act. The Scotland Act permits damages necessary to afford just satisfaction, subject to section 100.

A prison governor exercising the distinct function conferred by rule 80 does not act as the Scottish Ministers. Any Convention claim concerning that function must therefore proceed against the governor under the Human Rights Act. Where relevant documents are withheld on public interest immunity grounds, the judge must inspect them when inspection is necessary to balance fair disposal against the asserted public interest.

Somerville, Blanco, Henderson and Ralston v Scottish Ministers were consolidated judicial review proceedings brought by serving or former prisoners. They challenged orders removing them from association under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. They sought declarators and damages for alleged breaches of Convention rights. No evidence had yet been led.

The Lord Ordinary decided several preliminary questions. On reclaiming motions, the First Division held that the one-year limit in section 7(5) of the Human Rights Act 1998 applied to the damages claims, but that prison governors were subject to the same vires control as the Scottish Ministers. It also rejected a freestanding common-law proportionality argument and upheld the refusal to inspect documents covered by public interest immunity: [2006] CSIH 52; 2007 SC 140.

The central issues concerned the relationship between the Human Rights Act and the Scotland Act 1998, responsibility for governors' rule 80 decisions, limitation, proportionality and judicial inspection of redacted documents.

1. Appeals and cross-appeals allowed in part. By a majority of three to two, the House held that claims brought against the Scottish Ministers under the Scotland Act 1998 were not subject to section 7(5) of the Human Rights Act 1998. Lord Hope and Lord Rodger gave the majority reasoning, with which Lord Walker agreed. Lord Scott and Lord Mance dissented on this issue.

2. Per Lord Hope and Lord Rodger, the two Acts provide distinct but concurrent routes. An incompatible ministerial act is unlawful under section 6(1) of the Human Rights Act and outside devolved competence under sections 54(3) or 57(2) of the Scotland Act. Section 100 of the Scotland Act assumes that a qualifying victim may obtain damages necessary to afford just satisfaction. It imports the victim requirement and the restrictions in sections 8(3) and 8(4), but not the time limit in section 7(5). Henderson's time-bar ruling was therefore recalled.

3. The House unanimously allowed the Scottish Ministers' cross-appeal concerning prison governors. Per Lord Rodger, whose reasoning Lord Hope adopted, a governor acting under rule 80 exercises a distinct statutory function which the Ministers cannot perform. The governor is not their servant or alter ego for that purpose. The Carltona principle does not apply. Any Convention proceedings concerning the governor's acts must be directed against the governor under the Human Rights Act.

4. The section 7(5) question concerning continuing acts did not require a binding answer. Lord Hope considered that, for a properly characterised continuing act, time would run when the act ceased and damages could cover the whole period. He reserved whether the pleaded acts had that character. Lord Scott treated an unremedied segregation as capable of involving day-by-day failures, while Lord Mance regarded each monthly order or authorisation as a separate act.

5. The House unanimously held that the alleged freestanding common-law ground of proportionality should not be decided at this interlocutory stage. Proportionality was already relevant to the article 8 claims, and the common-law question might never become live. The excluded averments were restored for proof before answer.

6. The House unanimously allowed the appeal concerning public interest immunity. The documents had already been recovered as relevant. The question was therefore whether the Minister's reasons justified withholding the redacted material, not whether the prisoners could prove its relevance again. The judge had to balance the interests of justice against the asserted public interest and could not sensibly do so in this case without inspecting the documents. The relevant interlocutors were recalled and production to the Lord Ordinary for inspection was ordered.

1. House of Lords: In [2007] UKHL 44, allowed the prisoners' appeals on the time-bar, proportionality and public interest immunity issues. It allowed the Scottish Ministers' cross-appeals concerning the status of prison governors' rule 80 acts.
2. First Division of the Court of Session: In [2006] CSIH 52; 2007 SC 140, decided the time-bar, common-law proportionality and public interest immunity issues for the Scottish Ministers, but the governor and continuing-act issues for the prisoners.
3. Lord Ordinary: Lady Smith determined preliminary legal and procedural issues before proof. Among other matters, she excluded the freestanding proportionality averments and declined to inspect the material covered by public interest immunity certificates.