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Move to close damages loophole
01/04/2009
The Scottish and UK Governments are working constructively to take decisive action to prevent Scottish taxpayers from footing the bill for more payouts to prisoners.
Today a draft order was laid before both the Holyrood and Westminster Parliaments. If approved, it will give the Scottish Parliament the power to bring in a time limit for cases raised under the Scotland Act for damages for an alleged breach of human rights.
That would allow the Scottish Government to bring forward a bill to Parliament before the summer recess, with the new time limit in force by the end of July.
Following the Somerville judgement in 2007, the Scottish Government is the only public authority open to claims for damages arising from alleged breaches of human rights without a one year time bar. The proposed bill will end this anomaly, allowing the Scottish Government to release up to £50m currently set aside to deal with future claims for prisoner compensation for other priorities
Mr MacAskill said:
"We have already seen too much public money having to be paid out to prisoners, some of whom have committed extremely serious and indeed appalling crimes. We need to bring this situation to an end, and the public quite rightly expects that we should do so as quickly as possible. I welcome the constructive way in which we have been able to work together with colleagues at Westminister to take this forward together."
On October 24, 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.
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.
An IPQ detailing the process was answered in Parliament today. The text can be found below.
Bob Doris: To ask the Scottish Executive when legislation will be introduced to address the consequences of the Somerville judgement by establishing a one-year time bar for bringing human rights claims against the Scottish Ministers under the Scotland Act.
Mr Kenny MacAskill:
The First Minister told the Parliament on 19 March that the UK Government and the Scottish Government had reached agreement in principle on a solution to the anomaly exposed by the House of Lords judgment on Somerville, in terms of which the two Governments committed themselves to working together to deliver a one-year time bar in Scotland by the summer. That solution was to be the making of an order under the Scotland Act that would allow the Scottish Parliament to introduce the time bar, followed by urgent legislation in the Scottish Parliament. It was also agreed that the UK Government will subsequently seek the support of the UK Parliament to bring forward a comprehensive solution extending the same protection to the devolved Administrations of Wales and Northern Ireland, so putting all the devolved Administrations on a consistent footing.
The Scottish and UK Governments have subsequently worked closely together to agree the terms of the Order to be made under the Scotland Act. In terms of the Act, that Order will require to be approved by both the Scottish and Westminster Parliaments before being made by the Privy Council. A draft of that Order has therefore been laid before the Parliament today for its consideration and approval. The draft Order has similarly been laid before the Westminster Parliament.
The intention is that, subject to the approval of both Parliaments, the Order will enable a Bill to be introduced in the Scottish Parliament in June to bring in a one-year time bar for new cases raised on or after July 31, 2009. The precise terms of that Bill are still under discussion between the Scottish and UK Governments - both Governments remain committed to the aim of having that legislation in place before the beginning of the Scottish Parliament's summer recess.