Somerville v Scottish Ministers (Scotland) (Consolidated Appeals)

The House considered five interlocutory issues arising from judicial review petitions by prisoners challenging segregation under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. The key legal principles decided were: (1) where an act of a member of the Scottish Executive is said to be outside devolved competence because incompatible with Convention rights, that complaint may be pursued under the Scotland Act 1998 and is not, by virtue of the Scotland Act, subject to the one‑year limitation in section 7(5) of the Human Rights Act 1998; (2) orders made by a prison governor under rule 80(1) are exercises of a distinct statutory function by the governor and are not to be equated as acts of a member of the Scottish Executive for the purposes of the Scotland Act; (3) where the Human Rights Act time limit does apply to a continuing incompatibility, time will run (if the act is properly characterised as continuing) from the date when the continuing act ceased; (4) issues of proportionality relating to Convention rights were not excluded from proof and should proceed to evidence; and (5) where public interest immunity is asserted over documents that have been produced in redacted form the judge should inspect the unredacted material herself before deciding whether production should be ordered.

The consolidated appeals arose from petitions for judicial review by Somerville, Henderson, Blanco and Ralston (prisoners) challenging segregation orders made under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. The petitioners sought declarators that their segregation and its continuance were incompatible with article 8 (and article 7 in parts) of the Convention, damages as just satisfaction under the Human Rights Act 1998 and the Scotland Act 1998, and in Ralston’s case an order to end ongoing segregation.

The House was asked to decide five focused questions: (1) whether damages claims against a member of the Scottish Executive founded on breach of a Convention right are subject to section 7(5) HRA time limits; (2) whether a prison governor’s order under rule 80(1) is an act of a member of the Scottish Executive for the purposes of the Scotland Act; (3) when time runs under section 7(5) HRA for continuing breaches; (4) whether want of proportionality is a relevant common law ground of review distinct from Wednesbury unreasonableness; and (5) whether the court should inspect unredacted documents in respect of which public interest immunity was claimed.

On issue (1) the majority held that the Scotland Act provides the devolution/vires framework in relation to Convention incompatibility and that section 100 of the Scotland Act (taken with other provisions) indicates that proceedings to establish that an act was outside devolved competence because it was incompatible with Convention rights are not subject to the HRA s.7(5) time bar; damages as just satisfaction may be available in proceedings under the Scotland Act subject to the limits expressly stated in s.100. On issue (2) the House held that governors acting under rule 80 exercise a distinct statutory function and are not to be equated with members of the Scottish Executive; consequently challenges to governors’ acts fall to be pursued under the HRA (and thus s.7(5) may apply to those claims). On issue (3) the majority indicated (obiter or as preferred view) that where an incompatibility is properly characterised as a continuing act, time runs from the date the continuing act ceased; alternatively each discrete authorisation may be treated as a separate act. On issue (4) the court declined to decide the broader constitutional question of proportionality as an independent ground of review and allowed proportionality averments to proceed to proof. On issue (5) the House directed that the judge should inspect the redacted documents to determine whether PII justifies withholding disclosure.

Allowed in part. The majority held that (a) proceedings claiming that an act of a member of the Scottish Executive is outside devolved competence because incompatible with Convention rights may be pursued under the Scotland Act and are not caught by the HRA s.7(5) one‑year time bar (section 100 and related provisions so construed); (b) orders by a prison governor under rule 80(1) are distinct functions of the governor and are not to be regarded as acts of the Scottish Executive for that purpose (so complaints directed solely at governors fall to be pursued under the Human Rights Act and its time limits); (c) the judge should inspect unredacted documents where public interest immunity is claimed; and (d) proportionality averments were remitted to proof. The court gave reasons based on the statutory text and the devolution framework in the Scotland Act, the statutory roles under the Prison Rules and established public interest immunity procedure.

Appeal from the Inner House, Court of Session (First Division) (reclaiming motions from interlocutors of the Lord Ordinary): [2006] CSIH 52; reported at [2007] SC 140. Leave to appeal to the House of Lords was granted and the appeals were heard in July 2007, leading to this judgment of 24 October 2007.