The recent decision of the House of Lords in the case of Somerville v Scottish Ministers raises a number of peculiarly Scottish issues around the application of the UK human rights regime. Firstly, a brief word to recall the factual background. Mr Somerville and his fellow petitioners had all served, and in some cases were still serving, terms of imprisonment. They had in common that they sought to challenge the lawfulness of their "segregation" whilst in prison, a restriction which had been imposed upon them in terms of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. They each sought to challenge the legality under UK human rights law of their forced separation from other prisoners in this respect.
The petitions were resisted by the Scottish Ministers, upon the basis that the claims were time-barred, the petitions having been raised outwith the one year time limitation imposed by the Human Rights Act 1998. The specific issue considered by the House of Lords was the question as to whether the claims could be pursued alternatively under the Scotland Act and, if so, whether the same time-bar restriction applied.
The facts in relation to the "segregation" and "slopping out" cases are in themselves of sufficient interest to merit comment, and have indeed been the subject of significant media attention. The legal issues are however of at least equal interest, having regard to their significance in relation to the application of human rights law in Scotland.
In summary, the issue raised arose from the fact that, as a result of devolution and the application of the Scotland Act, there are in fact two statutory routes by which human rights challenges might in theory be brought in Scotland in relation to the conduct of the Scottish Ministers. On the one hand, the Scottish Ministers are susceptible to challenge as a "public authority" under the Human Rights Act 1998. On the other hand, however, the Scotland Act itself imposes what is arguably a similar restriction on Members of the Scottish Executive, who are precluded in terms of that Act from doing anything which contravenes the relevant articles of the European Convention on Human Rights. Whereas however there is a one year time limit on raising claims under the Human Rights Act, there is no such equivalent limitation specified in the Scotland Act. The question arose as to whether both Acts apply where a remedy is sought against the Scottish Government in these circumstances, or whether only one or the other Act, applies and, if so which of them. In particular, if the Petitioners were entitled to proceed by means of a claim under the Scotland Act, would this be subject to the time-bar restriction imposed by the Human Rights Act ?
The House of Lords held, by a majority of 3:2, that there was effectively an entitlement to proceed against the Scottish Government by either statutory route. Significantly, their Lordships held that the time-bar restriction applied only to the extent that a claim was made under the Human Rights Act. The time-bar provision had no application in claims brought under the Scotland Act. The decision overturns the view previously reached by the Court of Session in the same case and means that it is likely that more prisoners than was previously thought will be able to bring claims in respect of matters such as "slopping out" and "segregation".
From a legal perspective, the case marks a significant development in the application of human rights law to challenges to the Scottish Government. It will be of wider application to a range of potential cases and claims. The decision means that claims which would be time-barred under the Human Rights Act may be capable of resurrection by means of the Scotland Act route.