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Human rights loophole
25/06/2008
Justice Secretary Kenny MacAskill today called on the UK Government to take decisive action to close a legal loophole which has led to Scottish Ministers footing the bill for payouts to prisoners.
Following last year's judgement in the Somerville case, several rounds of talks have taken place at ministerial and official level to try and address the issue of time bar in human rights claims against the Scottish Government.
As a result of the judgement, which was delivered in October of last year, the Scottish Government is, unlike other public authorities, open to claims for damages arising from alleged breaches of human rights without a one year time bar. This was not envisaged or intended when the ECHR was incorporated into Scots law.
Since this concerns a reserved matter, any changes to the law to bring the liability of the Scottish Government into line with that of other public authorities require action by the UK Government. Scottish Ministers have therefore been pressing the UK Government to address the problem, but it has so far not responded with a decision.
Mr MacAskill said:
"When the Somerville judgement was delivered in October 2007 Scottish Ministers made it clear to the UK Government that the situation was unacceptable.
"As it stands the Scottish Government, unlike other public authorities, is exposed to claims for damages arising from alleged breaches of human rights without a one year time bar.
"We received initial indications from the UK Government that they would consider the issue positively and promptly. It is therefore frustrating that despite our strenuous efforts we still await a commitment by the UK Government to take action to remedy this situation, although our discussions with them continue. I have made clear to the UK Government our dissatisfaction with its failure to act and am continuing to put strong pressure on them to deal with the issue.
"In the meantime, we have no option but to deal with existing cases as the law now stands. We are doing that in the way which minimises the cost to the public purse.
"I am angry at having to pay out money that could otherwise be invested in a coherent penal policy, but an essential part of a good government is about dealing with the legacy of the past. This is a problem we inherited that we have to deal with. The key now is to minimise the cost to the taxpayer as much as possible, something the UK Government can assist us with.
"We have seen over the last few years a great deal of public money being spent on human rights challenges to the conditions in prisons. We have to replace existing capacity with fit for purpose accommodation. After years of indecision, the measures we have announced will provide prisons fit for purpose.
"We will provide an environment where professional prison staff can make meaningful intervention in tackling offending behaviour, meaning those released from prison are less likely to commit the offences that got them into trouble in the first place.
"As a Government we are determined to deal with both the causes and effects of the court actions we have inherited relating to slopping out. I have already announced that the SPS will invest £120m a year to build long-needed replacement prisons in Peterhead and Bishopbriggs and end the conditions that leave the system open to these claims."
On October 2007 the House of Lords ruled that the Scotland Act 1998 does not provide an explicit time bar for human rights claims brought against Scottish Ministers. The terms of the judgement and the current state of the law meant outstanding court cases and subsequent claims for compensation had to be settled using the provision previously made in Scottish Prison Service accounts.
The answer to inspired question S3W-6286 on November 14, 2007 described the legal impact of the Somerville judgement, both in relation to slopping out in prisons and more generally, as well as the action that the Scottish Government is taking to remedy the prison conditions we inherited from the previous administration that had led to the judgement.
As at May 16, 2008 the SPS had settled 1,093 court cases and 1,325 compensation claims submitted under the administrative scheme set up to consider slopping out claims without the need to go to court. SPS has paid out £5.1m in compensation and £2.6m in associated legal fees. A further 600 cases are under offer and another 740 have yet to be considered.
The challenge over slopping out began in 2002. Since then SPS has declared provisional and contingent liabilities in its Annual Reports and Accounts. SPS Annual Accounts for last year included provision of £74m to cover the potential liability in this area. The SPS has established an administrative scheme to consider future claims.
Slopping out was first held by the Scottish courts to be in breach of the European Convention on Human Rights in Napier, a case relating to prison conditions going back to 1999 and decided in 2004. Further actions in the Court of Session and the Sheriff Court were suspended pending the outcome of the House of Lords decision in the related case of Somerville. In September 2006 the Scottish Executive made a concession in the light of European Court of Human Rights jurisprudence to settle claims where prisoners had been detained in a shared cell with no access to in-cell sanitation. Offers of settlement were limited to those cases which then fell within the Scottish Executive's interpretation of the time bar in human rights cases.