Somerville v Scottish Ministers

[2007] UKHL 44

on appeal from:

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

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)

Appellate Committee

Lord Hope of Craighead

Counsel

Appellants:	Respondents:
Aidan O’Neill QC	Gerry Moynihan QC
Ailsa Carmichael	James Wolffe
Simon Collins	Douglas B Ross

Intervener

Advocate General for Scotland Lord Davidson of Glen Cova QC

Philip Sales QC Mark Lindsay

(Instructed by Solicitor’s Office)

Hearing dates:

3, 4, 5, 9 and 10 July 2007

ON
WEDNESDAY 24 OCTOBER 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

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)

[2007] UKHL 44

LORD HOPE OF CRAIGHEAD

My Lords,

1. The petitioners in these four applications for judicial review were all serving sentences of imprisonment. Two of them, Ralston and Somerville, are still in custody. Common to all the applications is a complaint about the lawfulness of their removal from association (referred to colloquially as “segregation”) under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the 1994 Rules”). The proceedings are still at the interlocutory stage. No final orders have yet been made. Instead a number of issues of law have been identified which it was thought helpful to have determined before any evidence was led. Some of them were resolved by the First Division of the Court of Session (the Lord President (Hamilton), Lord Macfadyen and Lord Nimmo Smith) after hearing argument on reclaiming motions in each case from decisions on them by the Lord Ordinary (Lady Smith): [2006] CSIH 52; 2007 SC 140. But five issues remain, for the determination of which the Inner House gave leave to the parties to appeal from its decision to your Lordships.

2.         These issues, as identified by the Statement of Facts and Issues,

are as follows:

1.  Whether a claim for damages based on breach of a Convention right by a member of the Scottish Executive is subject to the provisions of section 7(5) of the Human Rights Act 1998.

2.   Whether the act of a governor of a prison in making an order under rule 80(1) of the Prisons and Young Offenders (Scotland) Rules 1994 is to be regarded as an act of a member of the Scottish Executive for the purposes of section 57(2) of the Scotland Act 1998.

3.  Whether, where a continuing breach of Convention rights over a period of time is alleged, time begins to run, for the purposes of section 7(5) of the Human Rights Act 1998, from the first date on which the breach occurs.

4.  Whether want of proportionality is a relevant complaint of unlawfulness at common law.

5.  Whether the First Division erred in adhering to the Lord Ordinary’s refusal of the petitioners’ motions that the Court inspect the less-heavily redacted documents in respect of which public interest immunity was asserted by the Scottish Ministers.

The first, fourth and fifth of these issues were decided by the First Division in favour of the Scottish Ministers. The second and third issues were decided by the First Division in favour of the petitioners.

3. At the heart of the first three issues is a dispute about time bar. Section 7(5) of the Human Rights Act 1998 (“HRA”) provides that proceedings by a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) HRA because it has acted in a way which is incompatible with a Convention right must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court considers equitable having regard to all the circumstances. The Scotland Act 1998 (“SA”) does not contain any time limit of its own within which proceedings in which it is alleged that a member of the Scottish Executive has acted outside his devolved competence in terms of that Act must be brought . Your Lordships were informed that a large number of other cases involving the segregation of prisoners are awaiting a decision on this issue. It would however be rendered academic in the case of a complaint against the act of a governor if, as the Scottish Ministers contend, his act is not to be regarded as an act of the Scottish Executive.

Background

4.         It is unnecessary to say much about the facts of these cases.

Somerville, Henderson and Blanco complain of events that had been concluded before they brought proceedings. They seek various declarators in respect of past periods of segregation. The only live issue in their cases is their claim for damages as just satisfaction for a breach of their article 8 Convention rights. Ralston was still being held in segregation on 17 April 2003 when the first order in his petition was granted, and he was again segregated during the dependence of his application. Among the remedies he seeks, in addition to various declarators and damages as just satisfaction for a breach of his article 8 Convention rights, is an order ad factum praestandum to end his segregation. In the Court of Session there was a fifth petitioner, William Cairns, but he has not appealed against the orders that were made in his case. None of the petitioners claims damages as a delictual remedy at common law founded either in negligence or on a breach of statutory duty independently of a breach of their Convention rights.

5. The issue as to whether the section 7(5)(a) HRA time bar applies to these applications has not been raised in the cases of Somerville or Ralston. This is because they complain of segregation within one year of the date when they brought proceedings. It has been raised however in the cases of Henderson and Blanco. Four of the ten periods of segregation for which Henderson seeks damages as just satisfaction were concluded more than one year before his proceedings were brought on 9 June 2004. Blanco commenced proceedings on 6 November 2003. Segregation took place in his case, as a result of a series of orders made over time, between 1 August 2002 and 7 January 2003. His case also raises the question which is addressed as issue 3. If, as he maintains, the time bar runs from the end of his segregation, no part of his claim is time barred. If, as the Scottish Ministers maintain, time runs from the beginning of each period of segregation, his claim is restricted to that part of his segregation that is attributable to decisions made on 11 November and 10 December 2002.

6. The question whether the section 7(5)(a) HRA time bar applies also affects the second issue. Each period of segregation of which complaint is made was initiated by an order made by the prison governor under rule 80(1) of the 1994 Rules. It is not disputed that the governor of a prison is a public authority for the purposes of section 6(1) HRA. It is accepted that it would be unlawful for a governor to make an order under rule 80(1) which was incompatible with a prisoner’s Convention rights. The question is whether an act of a governor comes within sections 54(3) or 57(2) SA which limit the competence of members of the Scottish Executive. The practical importance of this question is that the consequences of the time bar on proceedings under section 7(1)(a) HRA will be avoided if proceedings with regard to acts of the governor can be brought under the Scotland Act on the ground that when he is making and giving effect to orders under rule 80 of the 1994 Rules he is a member of the Scottish Executive.

7. Each of the petitions contained averments that the respondents’ decisions were unreasonable and disproportionate. The Lord Ordinary excluded from probation the averments that the decisions were unreasonable in the Wednesbury sense. The petitioners have not appealed against that decision. Their argument that the decisions were not proportionate must be taken to be addressed to a higher level of scrutiny than that which is undertaken in judicial review on the ground of unreasonableness. The Scottish Ministers accept that proportionality is relevant to a consideration of the petitioners’ Convention rights arguments. But they maintain that the question whether the common law might afford a broader ground of judicial review on the ground of proportionality does not arise as a practical issue in these cases, as the petitioners do not seek a delictual remedy in damages but confine their claims to a just satisfaction remedy.

8. The issue which has been raised in these proceedings about public interest immunity is an issue of procedure. In each case the Lord Ordinary granted a commission and diligence for the recovery of various documents falling within the terms of an approved specification of documents. A substantial amount of material has been disclosed, subject to the assertion in relation to certain specific information of public interest immunity. The question relates to the procedure that should be followed where public interest immunity is asserted as an objection to disclosure. In particular, it is whether it was necessary for the Lord Ordinary to have inspected the documents herself before coming to a conclusion on production. She decided, having heard argument but without inspecting them, not to order production. The petitioners maintain that she was bound to inspect them. The Scottish Ministers submit that her decision not to inspect the documents unless she was persuaded that there was a good reason for doing so was a discretionary one, and that she was entitled to have regard to the circumstances of the case when she was exercising her judgment.

9. There is one other matter of background that needs to be mentioned. A proof before answer was allowed on the adjusted pleadings on 10 February 2004. On 30 June 2004 the court assigned 26 October 2004 and the following five weeks as a diet for the proof before answer. On 15 October 2004, in view of a problem that had arisen in obtaining expert evidence, the diet of proof was discharged. It was decided to use the time that had been set aside for it by debating various issues of law that the parties had identified. Some of the issues that were identified are more suited to this procedure than others. No evidence has yet been led, and the elaborate and repetitive pleadings are still capable of further amendment, with the leave of the court, before that stage is reached. This has resulted in a situation which, as my noble and learned friend Lord Walker of Gestingthorpe points out, is far from satisfactory. The function of this House is to decide issues of law that have been clearly focused by the proceedings in the courts below, not to deliver opinions on issues that may turn out to be of academic interest only. The fact that your Lordships have entertained this appeal must not be taken as an endorsement of the way in which the issues have been dealt with in the pleadings.

Issue 1: the relationship between the Scotland Act and the Human
Rights Act

10. This issue arises on the pleadings in the cases of Henderson and Blanco as an issue about time bar. But it is an issue of much wider significance. Anybody who wishes to bring any proceedings against a member of the Scottish Executive on the ground that an act or a failure to act is incompatible with the Convention rights, or to rely on any of the Convention rights in any proceedings, needs to know whether he must do this under sections 6 to 8 HRA or whether he must do so, or can do also, on the ground that the act or the failure to act is contrary to the provisions of the Scotland Act. This is so whether the proceedings in question are civil or criminal, as issues about incompatibility with the Convention rights may arise irrespective of the nature of the jurisdiction that the court or tribunal is being called upon to exercise.

11. Reduced to its simplest terms, the question is whether both Acts apply where a remedy is sought on the ground of incompatibility with the Convention rights with regard to an act or a failure to act of a member of the Scottish Executive that is said to be outside devolved competence; or whether only one or the other Act applies and, if so, which of them. As Mr Moynihan QC for the Scottish Ministers put it, can the Scotland Act be read as conferring a cause of action in damages to afford just satisfaction which is independent of that afforded by the Human Rights Act? It was unlikely, he said, that Parliament intended to confer an alternative remedy against the devolved institutions which was inconsistent with that provided by the Human Rights Act. The way these propositions were expressed underlines the fact that the issue is one of statutory construction. It is idle to speculate as to whether it is likely or unlikely that Parliament intended that a just satisfaction remedy was to be available under the Scotland Act without saying so expressly. The answer is to be found in the words used by the statutes, to which careful attention must be paid in order to discover the intention of Parliament.

12. Section 6(1) HRA makes it unlawful for a public authority, other than in ways that are inextricably connected to primary legislation as described in section 6(2), to act in a way which is incompatible with a Convention right. The expression “public authority” extends to governmental organisations such as members of the Scottish Executive: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 47. An “act” includes a failure to act: section 6(6). Sections 7 and 8 HRA give effect to the principle that acts of a public authority in breach of a Convention right are unlawful. Section 7 provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may bring proceedings in the appropriate court or tribunal or rely on the Convention right on in any proceedings, and section 8 makes provision for judicial remedies. Sections 7 and 8 contain various limitations on the obtaining of these remedies, one of which is to be found in section 7(5). This subsection provides that proceedings against the authority must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.

13. Two features of the Human Rights Act are fundamental to a proper understanding of its place in the legislative framework. The first is that it does not disturb the principle of the sovereignty of Parliament. A finding that primary legislation is incompatible with a Convention right does not affect its validity: section 3(6) HRA. Subject to the power that is given to minsters to make remedial orders under section 10, it is left to Parliament to decide, in the light of a declaration of incompatibility, what should be done about it. An act or failure to act of a public authority is not unlawful if, as a result of primary legislation, the public authority could not have acted differently or it was acting so as to give effect to primary legislation which cannot be read in a way that is compatible with the Convention rights: section 6(2) HRA. The second feature is that the language that it uses to describes acts or failures to act that are incompatible with the Convention rights is that they are “unlawful”: sections 6(1), 7(1), 8(1). Unlawfulness in terms of the Human Rights Act has certain consequences with regard to what can be obtained by way of a remedy. This is because the Human Rights Act makes the acts or failures to act unlawful in domestic law.

14. The Scotland Act, on the other hand, is concerned with the consequences of devolving legislative and executive power to institutions which have limited competence. Sections 29 and 30 and Schedules 4 and 5 define the legislative competence of the Scottish Parliament. The executive competence of the Scottish Ministers is limited in exactly the same way as that of the Scottish Parliament. Section 52 enables statutory functions to be conferred on the Scottish Ministers by the Scottish Parliament within its area of devolved competence. Section 29(1) SA provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. The effect of this provision is that the Scottish Ministers have no power to exercise functions that may be conferred on them which are outside the legislative competence of the Scottish Parliament. Section 53 provides for the transfer of functions previously exercisable by Minsters of the Crown to the Scottish Ministers, but only in so far as they are exercisable within devolved competence. The expression “devolved competence” is defined by section 54. Subsection (2) of that section restricts the devolved competence of the Scottish Ministers with regard to making, confirming or approving of subordinate legislation to what would be within the legislative competence of the Scottish Parliament. Subsection (3) imposes the same restriction on the devolved competence of the Scottish Ministers in the case of the exercise of any other function that they may exercise under a pre-commencement statute.

15. Section 57(2) SA reinforces, in the context of provisions about the devolved competence of the Scottish Ministers generally, the restriction that section 29(2)(d) imposes on the legislative competence of the Scottish Parliament. It provides that a member of the Scottish Executive “has no power” to make any subordinate legislation, or to do any other act, so far as the legislation or other act is incompatible with any of the Convention rights or with Community law. Section 57(3) qualifies that restriction in the case of an act of the Lord Advocate in prosecuting an offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, so as to align his position with that of the equivalent authorities in England and Wales. It does so by providing that section 57(2) does not apply to an act of the Lord Advocate in that capacity if, because of section 6(2) HRA, it would not be unlawful under section 6(1) HRA. That qualification on the limits of devolved competence does not apply to any other member of the Scottish Executive or to the Lord Advocate acting in any other capacity. It is not open to them to claim that the act or the failure to act was within devolved competence because, as a result of primary legislation, they could not have acted differently or they were acting so as to give effect to primary legislation which cannot be read in a way that is compatible with the Convention rights. The petitioners rely in their pleadings only on section 57(2) SA. But Mr O’Neill QC for the petitioners said in the course of his submissions to your Lordships that, as this case concerns the exercise of functions under a pre- commencement statute, he wished to rely also on section 54(3).

16. Fundamental, therefore, to a proper understanding of the Scotland Act is its concentration on the limits of devolved competence. There are, of course, other limits on devolved competence in addition to those that are imposed with reference to Community law and to the Convention rights. For example, as section 29(2)(a) makes clear, devolved competence is exercisable only within or with regard to Scotland. Schedule 5 contains a list of matters reserved to Parliament at Westminster, which lie outside the devolve d competence of the Scottish Parliament and the Scottish Executive. The provisions about Community law and the Convention rights give effect in the devolved system to the consequences for domestic law of the European Communities Act 1972 and of the incorporation of the Convention into domestic law of the United Kingdom by means of the Human Rights Act by placing restrictions on the functions that the devolved institutions can competently exercise. So an act by a member of the Scottish Executive which is incompatible with the Convention rights is not described by the Scotland Act as “unlawful”. It is described instead as “outside devolved competence” in section 54(3), and as something that he has “no power” to do in section 57(2). The machinery described in section 98 and Schedule 6 SA is available for the resolution of questions as to whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with Community law and any other questions as to whether a function is exercisable within devolved competence.

17. The Scotland Act may reasonably be expected therefore to contain everything that is needed by way of legislation for the proper working out of the system that it lays down. It has not been suggested that it lacks anything that is needed to give effect to the restrictions on devolved competence in any respect other than in regard to the Convention rights. It can be assumed that in every other respect the Act was drafted against the background of the remedies that are available in domestic law to deal with acts that are outside the competence of any body that is exercising powers given to it by statute, informed by decisions of the European Court of Justice as to the need for a domestic remedy in the case of acts that are incompatible with Community law: Francovich v Italian Republic (Joined Cases C-6/90 and 9/90) [1995] ICR 722; [1991] ECR I-5357; R v Secretary of State for Transport, Ex p Factortame Ltd (No 5) [2000] 1 AC 524; Sempra Metals Ltd v Commissioners of Inland Revenue [2007] UKHL 34; [2007] 3 WLR 354 (HL). It did not need to make provision for them because these remedies were already available.

18. Moreover, in the case of acts or failures to act that are incompatible with the Convention rights, the Scotland Act contains its own system for dealing with the incompatibility in a way that gives effect to the Convention. The system is the same as that for any other act or failure to act that is said to be outside devolved competence. A statutory authority has no power to do anything that is outside its competence. Issues as to whether or not an act or a failure to act is outside devolved competence because it is incompatible with the Convention rights are treated as devolution issues for the purposes of section 6, in the just same way as any other act or failure to act. The same remedies were assumed to be available as in the case of any other ultra vires act. These include the remedies of declarator and interdict and for the recovery of money paid in response to a demand made without statutory authority on the ground of unjustified enrichment: Morgan Guaranty Trust Company of New York v Lothian Regional Council, 1995 SC 151. They also include the remedy of damages which the Convention provides as just satisfaction for breach of a Convention right.

19. The wording of section 100 SA indicates that it was drafted on the assumption that the court may grant such relief or remedy as it considers appropriate. Section 100(1) provides that the Act “does not enable” a person to seek these remedies unless he would be a victim for the purposes of article 34 of the Convention. As a general rule, the fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified: Stair Memorial Encyclopaedia, vol 1, Administrative Law, para 333; see also F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 359H, per Lord Wilberforce. But the invalidity that is in point here is incompatibility with a Convention right, and questions as to what remedies are available for the incompatibility depend on what was intended by Parliament. Section 100(3) SA shows what Parliament intended. It assumes that damages for just satisfaction may be claimed in respect of an act which is outside devolved competence because it is incompatible with a Convention right. It provides that the Act “does not enable” a court or tribunal to award any damages which “it could not award” under sections 8(3) and (4) HRA. This makes it clear that a common law claim of damages for breach of statutory duty is excluded. The remedy is limited to what is necessary to afford just satisfaction. There would have been no point in making this provision if the court could not award damages at all as a remedy. The criminal courts in Scotland have no power to award damages, so it was not necessary for the negative provision expressed in section 8(2) HRA to be reproduced in the Scotland Act. Section 100(3) also makes it clear that it is because the act is outside competence within the meaning of the Scotland Act, not because it is unlawful within the meaning of section 6(1) HRA, that the person is assumed to be entitled to seek the just satisfaction remedy.

20. The question then is what indications there are in either Act that it was the intention of Parliament that proceedings in which it was alleged that an act or a failure to act was outwith the devolved competence of the Scottish Ministers because it was incompatible with the Convention rights must be brought , and brought only, under the Human Rights Act subject to the limitations which that Act lays down, including the time bar, for the obtaining of judicial remedies. The Human Rights Act does not mention the Scotland Act, although it refers in its definition of “subordinate legislation” in section 21(1) to Acts of the Scottish Parliament. So the answer must be found in what the Scotland Act itself provides.

(a) Section 129(2) SA

21.       I start with section 129(2). It provides:

“If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 29(2)(d), 57(2) and (3), 100 and 126(1) and Schedule 6.”

This subsection took account of the fact that, although the Human Rights Act was expected to receive the Royal Assent at about the same time as the Scotland Act, it was the intention to defer bringing most of the Human Rights Act into force until after the Scotland Act was fully in force. The Human Rights Act received the Royal Assent on 9 November 1998. The Scotland Act received the Royal Assent on 19 November 1998. Sections 18, 20, 21(5) and 22(1) HRA came into force on Royal Assent, and section 19 was brought into force on 24 November 1998. The bringing into force of the remainder of that Act was deferred until 2 October 2000: SI 2000/1851. The provisions of the Scotland Act were brought into force by stages also. The provisions dealing with devolved competence were brought into force in May 1999 and the Act was fully in force by 1 July 1999: SI 1998/3178.

22. One of the drafting techniques that was employed for the purposes of the Scotland Act was to refer to the Human Rights Act as a dictionary for use when dealing with issues about Convention rights. Sections 29(2)(d), 57(2) and 100(1) and Schedule 6 SA use the expression “the Convention rights”. It is defined in section 126(1) SA as having the same meaning as in the Human Rights Act 1998. Section 57(3) refers to acts which are not unlawful because of section 6(2) HRA. Section 100(3) refers to damages which a court or tribunal could not award if section 8(3) and (4) HRA applied. Section 129(2) enabled these provisions to be given effect during the period prior to the coming into force of the relevant provisions of the Human Rights Act in just the same way as they would when they were brought into force.

23. The First Division said that the effect of section 129(2) SA was that the Human Rights Act was to be treated as in force for the purposes of the Scotland Act as from the date when the Scotland Act came into force: para 54. But this is not what section 129(2) says. It refers, and refers only, to the provisions in the Scotland Act which are designed to protect Convention rights. It enables them to receive effect as from the date when they are brought into force on the assumption that the provisions of the Human Rights Act on which they depend were already in force by that date. The First Division said later in the same paragraph that the subsection points to an intention of Parliament that as from the coming into force of the Scotland Act it should be read and construed consistently with the Human Rights Act, and that this was wholly inconsistent with the notion that the Scotland Act was a self-contained, self-standing and self-understood instrument. In my opinion this proposition overstates the effect of section 129(2). It is true, as I have said, that the Scotland Act uses the Human Rights Act as dictionary to explain what it provides for the protection of Convention rights. To that extent, and for that purpose only, the subsection enables reference to be made to the Human Rights Act, although not yet in force. But it does not justify reading into the Scotland Act any of the provisions of the Human Rights Act, such as section 7(5) HRA, that the Scotland Act itself does not refer to.

24. A careful and accurate reading of section 129(2) is important because it reveals something else about the intention of Parliament. It tells us that it was the intention of Parliament that the system which the Scotland Act provides, by which an act or a failure to act which is incompatible with the Convention rights is outside devolved competence, was to be capable of receiving effect in just the same way before the Human Rights Act was fully in force as it was to be afterwards. There could, of course, be no question of such an act or failure to act being made unlawful until the coming into force of section 6(1) HRA. But this was of no consequence for the purposes of the Scotland Act, because it provides that an act or failure of that kind is outside devolved competence. Although the dictionary is needed to understand what is meant by its references to the Convention rights and to the references to the Human Rights Act in section 57(3) and section 100, the system of devolved competence as a whole, with all its consequences, was intended to be fully operational as from the coming into force of the Scotland Act.

25. Mr Moynihan QC recognised that, on his argument, the system of devolved competence was lacking one of its essential features until the coming into force of the Human Rights Act. This was because it was not until that stage was reached that an act or a failure to act that was incompatible with the Convention rights could be said to be made unlawful by section 6(1) HRA and the remedies for which that Act provides became available. He said that this was just something that had to be lived with. The delay was not, after all, expected to be for very long. I do not think that such an odd situation can be what Parliament intended. The system of devolution which the Scotland Act lays down was carefully worked out in every other respect. If there was to be such a transitional loophole, it could easily have been dealt with in section 129. The absence of such a provision indicates that Parliament saw no need for it because the Scotland Act was to have its own system

for protecting Convention rights, including a just satisfaction remedy, by

means of the limits that were to be placed on devolved competence.

(b) Section 100 SA

26. I turn next to section 100. It contains two subsections that

contain indications about what Parliament intended to be the
relationship between the two Acts. Section 100(1) provides:

“This Act does not enable a person –

(a)	to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
(b)	to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

Section 100(3) provides:

“This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act applied.”

27. Careful attention needs to be paid to the language of these two subsections. The purpose of section 100(1) is, of course, to ensure that there is no inconsistency between the Scotland Act and the use for the purposes of section 7(1) HRA of the victim test referred to in section 7(7) HRA. The purpose of section 100(3) is to ensure consistency between the Scotland Act and sections 8(3) and (4) HRA in regard to the awarding of damages. What matters for present purposes is the language that is used to achieve this. The formula that is used in each subsection is the same. The words “This Act does not enable” are followed by a reference to what the position “would be” if proceedings were brought in the European Court of Human Rights (section 100(1)) or to what a court or tribunal “could not award” if section 8(3) and (4)

applied (section 100(3)). In both cases the limitation that is imposed for the purposes of the Scotland Act is defined by comparing what the Act “does not enable” with what cannot be done in proceedings brought otherwise than under reference to the Scotland Act.

28. In my opinion the inference that is to be drawn from the way these subsections are expressed is that it was assumed by Parliament that all that needed to be done to protect the Convention rights in the case of pre-commencement enactments in the devolved system was to provide that the exercise of functions in a way that was incompatible with the Convention rights was outside devolved competence: section 54(3) SA. The limitations that are expressed in sections 100(1) and 100(3) SA are consistent with that assumption. There was no need to say anything about the remedies that might be obtained in respect of an act or failure to act of a member of the Scottish Executive that was outside competence except where this was because of an incompatibility with Convention rights. Inconsistency between the Scotland Act and the Human Rights Act in regard to an incompatibility with Convention rights could have been dealt with by making such an act or failure to act unlawful within the meaning of section 6(1) HRA and applying sections 7 and 8 HRA. But that is not what section 100(1) does. It assumes that the same proceedings may be brought under the Scotland Act on the ground of this kind of devolved incompetence as in the case of any other. On the assumption that damages may also be awarded as just satisfaction where an act is outside competence because it is incompatible with a Convention right, section 100(3) enacts special rules to ensure consistency with sections 7 and 8 HRA in the respects, and in the respects only, that it expressly refers to. Like section 8(3) HRA, it does not concern itself with anything other than just satisfaction damages.

29. The First Division discuss the effect of section 100 in para 80. They point out that a Convention incompatible act is not only outside the competence of the Scottish Ministers. It is also made unlawful by section 6(1) HRA. They say that, given that a remedy is available under sections 7 and 8 HRA, there is no need to look for a basis for a claim of damages to the Scotland Act. They then say that section 100 can be given what they describe as its natural meaning, rather than be distorted into an implied positive assertion of a right to claim damages. Having referred to the two ways in which sections 100(1) and 100(3) ensure consistency between the Scotland Act and the Human Rights Act, they conclude that the proper basis for a claim for damages is that the act or failure to act is unlawful, for which a claim is made available under section 8 HRA. It follows, they say, that such a claim is properly subject to the time bar imposed by section 7(5)(a) HRA.

30. In my opinion this approach fails to address the precise wording of sections 100(1) and 100(3). It is true that an act or a failure to act which is incompatible with the Convention rights can be said to both outside competence for the purposes of the Scotland Act and unlawful for the purposes of the Human Rights Act – now that the Human Rights Act is fully in force. It is also right to say that section 100 SA does not positively assert a right to claim damages for an act or a failure to act which is incompatible. And section 8 HRA does indeed contain provisions which expressly enable a court to grant relief in relation to any act which it finds unlawful, including the award of damages to afford just satisfaction after taking account of any other relief or remedy. But the First Division’s analysis breaks down at this point. There is no warrant in the words that section 100 uses for the conclusion that the time bar applies to proceedings that are brought under the Scotland Act on the ground that the act or failure to act is outside competence because it is incompatible with the Convention rights. The absence of any reference in section 100 to the section 7(5) HRA time bar is a plain indication to the contrary.

31. Acts or failures to act which are incompatible with the Convention rights are, in the language of the Scotland Act, outside competence. The fact that they are also unlawful for the purposes of the Human Rights Act (now that it is in force) does not weaken or undermine this point in any way. There are therefore two equally valid ways of addressing the incompatibility. It is open to the litigant to choose which of two alternative remedies he should pursue, even if the effect of doing so is to enable him to avoid a time bar that excludes one of them: Deutsche Morgan Grenfell Group plc v Commissioners of Inland Revenue [2007] 1 AC 558 (HL), para 51. A person who wishes to assert that an act or failure by a Scottish Minister is made unlawful by section 6(1) HRA must, of course, accept the system which that Act lays down for dealing with acts which that section makes unlawful, including the provisions in section 7(5) about time bar. A person who wishes to assert that the act or failure to act is outside competence in terms of the Scotland Act because it is incompatible with Convention rights must accept the limitations that are imposed by section 100 SA. But these limitations do not mention the section 7(5) time bar. The absence of a reference to that subsection indicates that it was the intention of Parliament to confine the limitations to those that were mentioned expressly.

(c) Section 57(3) SA

32. A further indication of what was intended by Parliament is to be found in section 57(3) SA. It extends to acts of the Lord Advocate in prosecuting any offence, and in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland, the protection that is afforded to a UK public authority which acts in ways that are inextricably connected to primary legislation that are described in section 6(2) HRA. But it does not extend this protection to any other member of the Scottish Executive. A requirement that a person who complained that an act of the Scottish Ministers which gave effect to primary legislation which could not be read otherwise was outside competence because it was incompatible with the Convention rights must seek his remedy under the Human Rights Act on the ground that it was made unlawful by section 6(1) HRA would be contrary to the system that is indicated by this subsection read together with section 57(2). It would provide the Scottish Ministers with a defence under section 6(2), albeit in this admittedly highly unusual situation, which the devolution system that the Scotland Act lays down denies to them. To achieve consistency with that system a remedy must be available against the Scottish Ministers under the Scotland Act.

(d) Why no section 7(5) HRA time bar?

33. The question may then be asked, why did the Scotland Act omit any reference to the section 7(5)(a) HRA time bar in section 100(3)? The answer to this question is to be found in the fact that section 100(3) is concerned only with awards of damages. Section 7(5) on the other hand applies generally to all proceedings under section 7(1)(a) HRA, irrespective of the choice of remedy or remedies. To achieve consistency with the Human Rights Act on this point therefore the Scotland Act would have had to extend the time bar to all proceedings mentioned in section 100(1)(a) SA, irrespective of the choice of remedy or remedies. It was not suggested however by Mr Moynihan in the course of his argument that the Scotland Act should be read in this way. He accepted that the section 7(5)(a) HRA time bar did not apply where the remedy sought was the repetition of sums paid in response to a demand by the Scottish Ministers which was outside competence.

34. It is not difficult to see that to include in section 100(3) SA a time bar on the lines of section 7(5) HRA that applied only where a remedy was sought in damages would distort rather than ensure consistency between the two systems. It would also have introduced a significant difference between the treatment of acts or failures which were incompatible with the Convention rights and those which were outside competence for other reasons. No compelling reasons can be imagined for taking that step.

35. It is worth noting too the provisions of Section 102 SA. This section contemplates that a court or tribunal may be asked to decide whether an Act of the Scottish Parliament was within the legislative competence of the Scottish Parliament or the making, confirming or approval of subordinate legislation was within the devolved competence of the Scottish Ministers. It also contemplates that decisions on these issues may have retrospective effect. Yet it does not impose any special time limit on the bringing of proceedings that may produce that result. I find here a further indication that it was thought that the existing law provided sufficient means of preventing unreasonable delay in the bringing of proceedings in respective of both legislative and executive acts that were alleged to be outside devolved competence, and that a special time bar of the kind provided for by section 7(5)(a) HRA was unnecessary.

(e) R v HM Advocate

36. I have refrained so far from mentioning what I said in R v HM Advocate, 2003 SC (PC) 21 about the relationship between the two Acts. In para 43 I said that the precise relationship between them was still in the course of being worked out. I then dealt with the argument that had been advanced on behalf of the Lord Advocate that the machinery provided by the Scotland Act was not available for dealing with complaints about acts of the Lord Advocate in prosecuting offences and that such complaints could only be dealt with under the Human Rights Act. In para 51 I referred to section 100. I said that there would have been no point in enacting that provision if the only way in which an accused person could make such a complaint was by invoking the provisions of the Human Rights Act. It pointed to the opposite conclusion which was that it was under the provisions of the Scotland Act that he must seek his remedy. In para 60 I said that a power to award damages was clearly implied by section 100(3) SA, and I referred to the description in Clayton and Tomlinson, The Law of Human Rights, p 1416, para 21.13 of an award of damages in these circumstances as a public law remedy.

37. The complaint in R v HM Advocate was of unreasonable delay in the prosecution of certain charges on indictment by the Lord Advocate. The appellant sought the deletion of those charges from the indictment on the ground that the effect of section 57(2) SA was that Lord Advocate had no power to proceed with them because of his delay. The Lord Advocate’s position was that, havi ng regard to what he submitted was the meaning of the word “act” in section 57(2) SA, the appellant’s complaint did not raise a devolution issue within the meaning of para 1 of Schedule 6 SA. He maintained that, for this reason, the Judicial Committee of the Privy Council did not have jurisdiction to deal with it. My observation that the accused’s challenge in these proceedings had to be brought under the Scotland Act needs to be understood in that context.

38. The First Division said in its opinion in this case that I was mistaken in my construction of section 100 SA: paras 72, 76. But I see no reason to depart from what I said about section 100(1)(b) in R v HM Advocate. On the contrary, I am unable to accept their interpretation of that subsection or of section 100(3). Nor am I able to accept their interpretation of section 129(2). In my opinion, a careful and accurate reading of these two sections, taken together, provides ample support for the conclusion that Parliament intended that a person whose complaint was that an act or a failure to act of a Scottish Minister was outside competence because it was incompatible with the Convention rights should be able to seek a remedy on the ground that this was ultra vires in terms of the Scotland Act. They do not justify the contrary conclusion that he must do so, and can do so only, under the Human Rights Act. The limitations that the Human Rights Act imposes on the obtaining of such a remedy are only relevant to the extent that section 100 makes express reference to them. As section 100 does not mention the section 7(5) HRA time bar, that limitation does not apply to these proceedings as the petitioners’ case is that the acts or failures to act were outside devolved competence within the meaning of section 54(3) SA.

39. I ought to mention, in fairness to their Lordships of the First Division, that the analysis that I have set out in the preceding paragraphs is not based on points made by Mr O’Neill in the course of his argument. He took his stand, without much further elaboration, on his understanding of what was said by myself and my noble and learned friend Lord Rodger of Earlsferry in R v HM Advocate. The First Division were right to treat what was said on this issue in that case as obiter. They had a great deal else to consider in the course of a hearing in their court which lasted for 12 days. And the state of the pleadings tends to obscure rather than reveal the strength of the petitioners’ argument. Nevertheless I am in no doubt, after giving much further thought to the issue, that they were wrong not to follow the guidance that was offered in R v HM Advocate. I would hold that the petitioners’ case that the acts and failures to act of the Scottish Ministers were outside competence is not subject to the section 7(5) HRA time bar.

40. Mr O’Neill submitted that, even if these proceedings were to be regarded as having been brought with reference to the Human Rights Act, section 7(5) did not apply because they were not proceedings “under this Act” for the purposes of section 7(1)(a) HRA. He advanced an argument, of which no prior notice had been given, to the effect that the petitioners’ claim of damages should be regarded as having been brought under reference to section 7(1)(b) HRA, to which the time limit under section 7(5) does not apply. I do not need to deal with it in view of the opinion which I have formed on the main issue. If it had been necessary to do so, I would have favoured the answer to it which my noble and learned friend Lord Mance has indicated. As it is, I wish to reserve my opinion as to the precise relationship between these two paragraphs in the context of an argument about the scope of the section 7(5) HRA time limit.

Issue 2: whether section 54(3) SA applies to acts of the governor

41. Part 9 of the 1994 Rules deals with the security and control of prisoners. Among its provisions is rule 80 which deals with removal from association. The system which this rule lays down involves the making of orders by the governor and, in the case of removal from association for periods in excess of 72 hours, the granting of authority for its continuation by the Scottish Ministers.

42. Rule 80(1) provides that the governor may order in writing that a prisoner shall be removed from association wi th other prisoners either generally or during any period he is engaged or taking part in a prescribed activity. Rule 80(5) provides that a prisoner who has been removed from association by virtue of an order made by the governor shall not be subject to such removal for a period in excess of 72 hours from the time of the order except where the Scottish Ministers have granted written authority on the application of the governor. Rule 80(6) provides that an authority granted by the Scottish Ministers under rule 80(5) shall have effect for a period of one month from the expiry of the period of 72 hours but that they may, on any subsequent application by the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority.

43. The periods of segregation that are in issue in each of these cases extended over periods in excess of 72 hours. In each case decisions were made by a governor that the petitioner should be removed from association. In each case the governor made application to the Scottish Ministers for authority to continue to hold the petitioner under rule 80 conditions for further periods, and written authority to do so was granted by the Scottish Ministers.

44. The Scottish Ministers submit that the powers that are given to the governor by rule 80 are given to him as governor in his own right and not to him in the exercise of functions by the Scottish Ministers. The practical significance of this issue is that complaints that the governor has acted in a way which is incompatible with the Convention rights cannot, if this submission is well founded, be brought under reference to the Scotland Act. They would have to be brought under section 7(1)(a) HRA, with the result that they would be subject to the section 7(5)(a) HRA time bar irrespective of the decision which your Lordships reach on issue 1. The First Division held however that the cumulative effect of the provisions of the Scotland Act regarding the functions relating to prisons that were transferred to the Scottish Ministers was that a governor, as an appointee of the Scottish Ministers, is circumscribed by the same limits of competence as his appointer: para 25.

45. At first sight there is force in the proposition that a governor who is exercising powers given to him by the 1994 Rules is acting in his own capacity as governor and is not subject to the direction or control of the Scottish Ministers. On this view the Scottish Ministers would not be answerable for his decisions on the principle that was explained in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. The application of that conclusion to the facts of this case seems to me less clear, however. There are two reasons for taking this view.

46. The first arises out of the way the petitioners’ case is put in their pleadings. Their case is a cumulative one. It is directed both to the orders made by the governors and to the grants and renewals of authority by the Scottish Ministers. The argument that proceedings cannot be taken with reference to section 54(3) with respect to orders made by the governors does not affect the case made with respect to the grants and renewals of authority by the Scottish Ministers. It is unclear at this stage, prior to an analysis of the facts established by the evidence, whether and if so to what extent the remedies that the petitioners seek are dependent upon acts of the governors as distinct from acts of the Scottish Ministers.

47. The second arises out of the definition that is contained in rule 3 of the 1994 Rules of the word “governor”. For the purposes of rule 80, among other rules, it extends not only to the governor in charge and the deputy governor but also to any authorised unit manager and, when none of these other officers is present, to the most senior officer who is present in the prison at that time. The extent of this definition lends support to the view which the First Division took on this issue, that it falls to be determined by examining the functions regarding prisons and their organisation and management that were transferred to the Scottish Ministers by the Scotland Act and not by looking exclusively to the functions that the 1994 Rules provide are to be exercisable by governors.

48. On balance however I agree with Lord Rodger that the fundamental point is that whoever is acting as governor for the purposes of rule 80 at the relevant time is exercising a different function from that exercised by the Scottish Ministers, who are not responsible for any order he makes under that rule. It follows that the First Division’s conclusions that the governor, in making his order, was subject to the same vires control as the Scottish Ministers and that no distinction fell to be made between him and the Scottish Ministers on the issue of time bar were unsound.

Issue 3: when time begins to run under section 7(5)(a) HRA

49. Section 7(5)HRA applies only to proceedings that are brought against a public authority under section 7(1) by a person who claims that it has acted, or proposes to act in a way which is made unlawful by section 6(1). It provides:

“Proceedings under subsection (1)(a) must be brought

before the end of –

(a)	the period of one year beginning with the date on which the act complained of took place; or
(b)	such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit
in relation to the proceedings in question.”

The wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a particular date. No express provision is made for an act which extends over a period of time, such as is said to have occurred in these cases as a result of the decisions taken under Rule 80 of the 1994 Rules.

50. The Scottish Ministers contended that time began to run against the petitioners under section 7(5)(a) HRA from the commencement of any period of segregation and that it was interrupted only by the service of the petition in which the segregation was complained of. The Advocate General supports this approach, on the view that the relevant acts were the decisions of the governor to order segregation. These were, he submits, one-off acts with continuing consequences. The First Division agreed that the proceedings were interrupted only by service of the petition. But they held that these were continuing acts and that time began to run only on the expiry of the relevant period of segregation. This was on the view that the relevant consideration was not only the decision to subject the petitioner to this regime but also the practical effect of the decision on the petitioner: para 86. They sustained the Scottish Ministers’ plea of time bar in so far as it was directed towards Henderson’s first four periods of segregation. Quoad ultra they allowed his petition to proceed and those at the instance of Cairns and Blanco. There was no plea of time bar in Somerville’s case or that of Ralston.

51. This issue will be rendered academic if, as I would hold, the time bar in section 7(5)(a) HRA does not apply to these proceedings as presently drafted because the petitioners’ case is that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act. If it is necessary to express an opinion on it, however, I would hold that the phrase “the date on which the act complained of took place” in section 7(5)(a) means, in the case of what may properly be regarded as a continuing act of alleged incompatibility, that time runs from the date when the continuing act ceased, not when it began. Otherwise it would not be open to a person who was subjected to a continuing act or failure to act which was made unlawful by section 6(1) HRA to take proceedings to bring it to an end without relying on section 7(5)(b) while it was still continuing after the expiry of one year after its commencement. I would also hold that, so long as the proceedings are brought within the time permitted by section 7(5)(a) and any longer period allowed under section 7(5)(b), damages may be awarded as just satisfaction for the whole of the period over which the continuing act extends, including any part of it that commenced before the period of one year prior to the date when the proceedings are brought.

52. The position would be different, for the reasons given by Lord Mance, if the orders and authorisations complained of were to be seen as a series of acts with continuing consequences. But the question whether the acts complained of in these cases are continuing acts or one-off acts with continuing consequences is not easy to determine on the petitioners’ pleadings. Decisions of the Strasbourg court indicate that it tends to analyse situations such as these as one-off acts with continuing consequences, rather than as continuing breaches of the Convention: see eg Camberrow MM5 AD v Bulgaria (App. no. 50357/99, 1 April 2004), p 17; Blecic v Croatia ( App. No. 59532/00, 8 March 2006), paras 85, 86. This is not a rule of law, however. Each case must be viewed on its own facts. The question how the petitioners’ cases ought to be viewed in the light of this jurisprudence would require more careful examination if the section 7(5) HRA time limit applied to them. I would prefer to reserve my opinion upon it in view of the answer which I would give to the first issue.

Issue 4: proportionality

53. The remedies which the petitioners seek are set out in statement 3 of their petitions. Included as statement 3(a) in each case is a prayer for a declarator that the orders and grants and renewals of authority authorising the general segregation of the petitioners under rule 80 of the 1994 Rules were “disproportionate et separatim unreasonable and therefore unlawful.” In statement 11 in Somerville’s case it is averred that the decision on the part of the Scottish Ministers to make provision for the effective imposition of a punishment regime in segregation as the only means of management, control and containment of prisoners involved a disproportionate interference with his rights under article 8 of the Convention to respect for his psychological integrity, personal development and autonomy and self-determination and to his physical and moral security. In statement 12 of his petition it is averred that the decisions of the governors and the purported decisions of the Scottish Ministers to segregate and continue to segregate him were in all the circumstances disproportionate et separatim unreasonable and unlawful. His plea in law is to the same effect. Similar averments and pleas in law are contained in the petitions of the other petitioners.

54. The Lord Ordinary held that the law did not recognise proportionality as an independent ground for judicial review of administrative action and she excluded the averments which raised this issue from probation. Before the First Division counsel for the Scottish Ministers indicated that the issue was unlikely to be of any practical importance as the proportionality of the Scottish Ministers’ actings might require to be addressed in the context of the petitioners’ cases under article 8 of the Convention. They were content to have the whole averments and pleas about proportionality remitted to proof before answer. The First Division decided nevertheless to hear argument on this issue. Having done so, they rejected the petitioners’ submission that the law recognised proportionality as a criterion by which to test the validity of administrative action generally: para 124. They also rejected the petitioners’ subsidiary argument that it had been recognised as a criterion for dealing with alleged infringement of common law fundamental rights including the right to liberty. They excluded from probation the words “disproportionate et separatim” where they appear in statement 3(a) and repelled the petitioners’ first pleas in law so far as relating to proportionality. The word “unreasonable” had already been excluded from probation by the Lord Ordinary.

55. In the discussion before your Lordships Mr Moynihan again submitted for the Scottish Ministers that the issue whether proportionality was an independent ground for judicial review was academic at this stage and in the events that had happened, and that it was unnecessary to reach a decision on it. But he also submitted that, were it necessary to deal with the issue, your Lordships should hold that the proposition that it was an independent ground of judicial review was not supported by authority. There was a material difference between the grounds of review described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence, ex p Smith [1996] QB 517 and the approach of proportionality in respect of review with regard to Convention rights: R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, para 26, per Lord Steyn. Such authority as there was indicated that a decision that proportionality was a ground for judicial review in addition to Wednesbury unreasonableness would give rise to much uncertainty. He referred to Lord Walker of Gestingthorpe’s observation in R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185, para 144, that the Wednesbury test, for all its defects, has the advantage of simplicity.

56. In my opinion it would not be appropriate for your Lordships to seek to reach a decision on this issue in the circumstances of this case. The issue of proportionality will have to be considered in the context of the petitioner’s complaint of an infringement of their article 8 Convention rights. It is unclear what need, if any, there will be for an examination of this issue independently of that complaint. As Mr Moynihan pointed out and their pleas in law make clear, the petitioners’ claim for damages is confined to what would be necessary to afford just satisfaction within the meaning of section 8(3) HRA: see R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, para 19, per Lord Bingham of Cornhill. I have in mind too that, subject to the question of time bar, these petitions have already been sent to proof before answer on other issues and that the pleadings may be subject to further amendment, with the leave of the court, before the proof takes place. All these factors indicate that this is not the occasion to embark on an examination of this issue, which is plainly one of considerable importance and difficulty. I would allow the averments directed to the question of proportionality to go to proof before answer.

Issue 5: inspection by the judge of redacted documents

57. In each case the Lord Ordinary granted a commission and diligence for the recovery of documents in the hands of the Scottish Ministers called for in various specifications of documents lodged by the petitioners. The Scottish Ministers produced several hundred documents in response to these calls. But in many cases parts of these documents were blacked out, or redacted, so as to delete various details and in some cases entire documents were blanked out. This was done because the Minister for Justice in the Scottish Executive was of the opinion that the disclosure of these parts would be contrary to the public interest because it would cause real harm to the work of the Scottish Prison Service. Public interest immunity certificates were lodged in each case which gave reasons for the view which she had formed with the assistance of Mr Michael Duffy, the Director of Prisons in the Scottish Prison Service, whose affidavit giving his reasons was also lodged, and of other officials in the SPS.

58. The petitioners insisted nevertheless on seeking to recover these documents in an unredacted form, except in so far as the redacted parts disclosed the identities of persons referred to in the PII certificates. By agreement between the parties, counsel for the petitioners were permitted to consider the redacted parts of the documents so that they could be informed of their contents. This was done in accordance with a protocol which provided that they would not disclose their contents to any other person except to the extent to which the court should decide that the document should be disclosed notwithstanding the assertion of PII.

59. The question as to the extent to which the documents should be recovered in an unredacted form then came before the Lord Ordinary for a hearing in camera. On 8 February 2005 the Lord Ordinary, having heard submissions from the parties, refused to order that the documentary material covered by the PII certificates be produced for inspection by the court or to the petitioners. In the reasons that she gave for this decision she explained that counsel for the petitioners, despite having seen the material sought, did not specifically identify any document or part of a document as being required for the furtherance of any specific issue in any one of the individual cases. She said that it was not obvious that evaluation of intelligence material would have any bearing on the cases that were pled. She concluded that the petitioners had not made out a case that the material sought was likely to give substantial support to any specific issue identified in their cases.

60. The First Division agreed with the Lord Ordinary and adhered to her interlocutor. They did not accept that counsel for the petitioners was inhibited by the protocol from pointing to specific averments of either party which disclosure of the redacted passages would serve to prove or disprove and without which the petitioner would be deprived of the means of proper presentation of his case. Yet no attempt had been made to direct the Lord Ordinary’s attention to any averment the proof of which depended on or would be advanced by disclosure of any redacted passage. They said that there was good reason for a procedural requirement that the court should be satisfied at the outset that there was sufficient justification for considering unredacted material: para 20.

61. I would be reluctant to interfere with a decision of the Court of Session on a mere matter of procedure: see Girvan v Inverness Farmers Dairy, 1998 SC (HL) 1, 21. But the issue raises an important matter of principle on which it is proper that your Lordships should give guidance. I also think that the decision of the Court of Session on this issue was based on a misconception of the context in which the Lord Ordinary was being asked to examine the redacted material in the light of the reasons that had been given for the PII certificates.

62. Dealing first with the context, the issue as to whether or not the redacted material ought to have examined by the Lord Ordinary should have been determined in the light of the fact that all the documents in respect of which the PII certificates had been lodged had been produced in answer to calls in specifications of documents approved by the court. The information which they contain appears to be directly relevant to the claims made by the petitioners. The assumption must be that, but for the PII certificates, these documents would all have been released in an unredacted form to the petitioners. The issue for the Lord Ordinary therefore was not whether disclosure of those documents would have a bearing on the case that had been pled or would assist the petitioners in proving or disproving matters that had been raised in the pleadings. It was whether sufficient reasons had been given by the Minister for Justice in her PII certificates in the public interest for withholding the redacted material.

63. As for the procedure that ought to have been adopted, the issue as to whether the withholding of this material was justified by the PII certificates was for the Lord Ordinary herself to determine. The court must always be vigilant to ensure that public interest immunity of whatever kind is raised only in appropriate circumstances and with appropriate particularity: Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681, 688, per Russell LJ. The balance between the interests of justice, which favour disclosure, and the public interest which the Minister for Justice asserts, which favours withholding the material and to which due weight must be given in view of its subject matter, was for her to assess. I do not see how she could properly perform this task without examining the documents herself in this case. The White Book 2007, para 31.3.33, dealing with the practice in England and Wales, states that it is generally best if the judge should see the documents before ordering production, and if he thinks that the minister’s reasons for refusing production are not clearly expressed he will have to see them too before ordering production. I agree with Lord Mance that the judge could only sensibly determine the matters in issue by inspecting the documents.

64. I have every sympathy for the Lord Ordinary in the task that confronted her. It was not made easier by the volume of material that needed to be considered. Nevertheless it was a task that had to be performed by the court in view of the assumption that must be made that, had it not been for the PII certificates, the documents would have been released in their unredacted form to the petitioners. I would recall the relevant interlocutors and order that the documents be produced for inspection by the Lord Ordinary.

Procedure

65. I agree with Lord Rodger that the course which these cases have taken fits uneasily with the nature and purpose of judicial review according to the procedure that was introduced in response to Lord Fraser of Tullybelton’s initiative. The working party that was set up on 27 April 1983 in response to his observations was asked “to devise and recommend for consideration a simple form of procedure, capable of being operated with reasonable expedition”: see West v Secretary of State for Scotland, 1992 SC 385, 403-404. The rules which are now set out in chapter 58 of the Rules of the Court of Session 1994 were intended to achieve this. As a result the degree of precision and detail in written pleadings that has traditionally been looked for in other forms of action in Scotland is not to be looked for in petitions for judicial review: Clyde and Edwards, Judicial Review (2000), para 23.19. The core requirement is simply this. The factual history should be set out succinctly and the issues of law should be clearly identified. The aim is to focus the issues so that the court can reach a decision upon them, in the interests of sound administration and in the public interest, as soon as possible. The fact that these aims have not been achieved in this case is as obvious as it is regrettable. I join with my noble and learned friend in expressing the hope that, in the light of all that has happened to date, these cases will be brought to trial as speedily as possible.

Conclusion

66. I would allow the petitioners’ appeal on the first, fourth and fifth issues and the Scottish Ministers appeal on the second issue. I would find that a claim for damages as just satisfaction in respect of an act by a member of the Scottish Executive which is outside devolved competence because it is incompatible with a Convention right is not subject to the provisions of section 7(5) HRA.. I would recall the interlocutor of the First Division in Henderson’s case in so far as it sustained the plea of time bar so far as directed to the first four periods of segregation and excluded his averments in respect of those periods from probation. I would recall the interlocutors of the First Division in each case in so far as they excluded from probation in each petition the words “disproportionate et separatim” where they appear in statement 3(a) and repelled the first plea in law so far as relating to proportionality. I would also recall its interlocutor in each case in so far as they adhered to the terms of the Lord Ordinary’s interlocutor of 8 February 2005 in which she refused to order that the documentary material covered by the PII certificates be produced for inspection by the court or to the petitioners. I would recall that part of the Lord Ordinary’s interlocutor in each case and direct that the documentary material be produced for inspection by the Lord Ordinary. Otherwise I would adhere in each case to the First Division’s interlocutor.

LORD SCOTT OF FOSCOTE

My Lords,

67. I have had the great advantage of reading in advance the opinions prepared by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry and gratefully adopt their exposition of the circumstances in which the five issues identified in the agreed Statement of Facts and Issues (see para 2 of Lord Hope’s opinion) arise.

Issue 1

68. The first (and main) issue is whether a claim for damages based on an alleged breach of a Convention right by a member of the Scottish Executive is subject to the time limits prescribed by section 7(5) of the Human Rights Act 1998. This issue, on which I confess I have changed my mind more than once, depends upon the construction and effect of section 100 of the Scotland Act 1998 and, particularly, subsection (3) of that section. A review of the relevant provisions of the Human Rights Act 1998 (the HRA) and the Scotland Act 1998 (the SA) is repetitive, for Lord Hope and Lord Rodger have already carried out the exercise, but unavoidable if my conclusions on the issue are to have any coherence.

69. Both Acts received the Royal Assent in 1998 but whereas the sections of the SA relevant to this appeal came into effect in May 1999, the relevant sections of the HRA did not come into effect until 2 October 2000, some 17 months later. This gap explains section 129(2) of the SA which provides that each of a number of specified provisions of the SA including section 57(2) and (3) and section 100 -

“… shall have effect until the time when [the HRA] is
fully in force as it will have effect after that time.”

70. The relevant sections of the HRA are, for present purposes, sections 6, 7 and 8. Section 6(1) declares it to be “… unlawful for a public authority to act in a way which is incompatible with a Convention right”. Sections 7 and 8 flesh out the consequences.

71. Section 7(1) enables a person who complains that a public authority has acted in a way made unlawful under section 6(1) and who is a victim of the unlawful act complained of either to bring proceedings against the authority or to “rely on the Convention right or rights concerned in any legal proceedings”. There has been some discussion in the hearing of this appeal about the scope of the respective alternatives offered by section 7(1). For my part, I think their effect is clear. The victim can rely on the alleged unlawfulness either in proceedings against the authority that he, the victim, has brought – either by commencing an action or by making a counter-claim in an action the authority has commenced – (subsection (1)), or as a defence in proceedings commenced by someone else, usually but not necessarily the authority, in which he, the victim, has become a party, usually but not necessarily as a defendant (subsection (2)). Subsection (5) of section 7 provides a time limit. Proceedings brought by the victim under subsection (1)(a) must be commenced within one year of the date on which the act complained of took place, or such longer period as the court may consider it equitable to allow, n.b. that reference to an “act” includes a “failure to act” (see s.6(6)). Mr O’Neill QC, counsel for the appellants, had a late new point, namely that proceedings claiming relief against a public authority for an alleged breach of Convention rights could be brought free from the time limits prescribed by section 7(5) provided it were combined with some other claim. In such a case, he suggested, the proceedings would fall under section 7(1)(b), not under section 7(1)(a). I am afraid that, like most last minute thoughts, this was a bad one. It is section 7(1)(a) that enables claims against public authorities for breach of Convention rights to be brought, whether that claim stands alone or is joined with other claims. The restraints imposed by section 7(5) cannot be so easily side-stepped.

72. Section 8(1) of the HRA enables the court in relation to “any act (or proposed act) of a public authority which the court finds … unlawful” to grant such remedy “as it considers just and appropriate”. But subsection (3) bars an award of damages unless the court “is satisfied that the award is necessary to afford just satisfaction …” to the claimant, and subsection (4) requires the court, when determining the amount of the award, to take into account the principles applied by the European Court of Human Rights.

73. The SA, as Lord Hope has explained, makes careful provi sion for the consequences of devolving legislative and executive power to institutions with limited competence. One of the limitations on the legislative competence of the Scottish Parliament and on the legislative and executive competence of the Scottish Ministers and the Scottish Executive is that nothing is to be done that is “incompatible with any of the Convention rights or with Community law” (see s.29(1) and (2)(d), s.54(2) and s.57(2) of the SA). A consequence of these provisions is that an act done by the Scottish Executive that was incompatible with a Convention right (bar a few exceptions irrelevant to this appeal that I shall forbear to explore) would necessarily be ultra vires, outside devolved competence. It would be an unlawful act for HRA purposes but would also be unlawful under ordinary Scottish law, as are all ultra vires acts done by public authorities with limited powers.

74.       I can now come to section 100 of the SA -

“100(1) This Act does not enable a person –

(a)	to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
(b)	to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of …
the Convention …
(2) ……

(3) This Act does not enable a court or tribunal to

award

any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the [HRA] applied.”

(4) In this section ‘act’ means –

(a)	making any legislation,
(b)	any other act or failure to act, if it is the act or failure of a member of the Scottish Executive.”

75. It will have been noticed that paragraphs (a) and (b) and the “unless” proviso in subsection (1) are in effect identical to their counterparts in section 7(1) of the HRA. So what was the purpose of subsection (1)? And what was the purpose of subsection (3)? Subsection (1) is plainly concerned with locus standi. Under section 7(1) only an HRA ‘victim’ can bring proceedings on the ground that an act is incompatible with a Convention right or rely on that incompatibility as a defence in proceedings brought by others. This locus standi control would apply to any contention of incompatibility in any legal proceedings. Bearing in mind that Convention incompatibility is a ground on which any enactment of the Scottish Parliament, any subordinate legislation made by the Scottish Ministers or the Scottish Executives or any act of any member of the Scottish Executive may be held to be outside devolved competence and therefore ultra vires, the need to place a strict limit on those entitled to raise such a point in litigation seems to me easy to understand.

76. The purpose of subsection (3) is much more difficult to identify. The appellants’ contention, as I understand it, is that a sensible purpose can be attributed to subsection (3) only if it is accepted that the SA, without saying so expressly, has conferred on every person who claims to be an HRA victim the right to bring a damages action for loss caused by an alleged breach of a Convention right. On that footing, subsection (3) limits the damages that the court can award in such an action to the damages that could be awarded if section 8(3) and (4) of the HRA applied. That is the suggested purpose of subsection (3). If it is right that the SA has impliedly created the suggested new right of action, additional and alternative to an action brought in reliance on section 7(1) of the HRA, it would be an action to which the time limit control prescribed by section 7(5) of the HRA would not apply. Section 7(5) only applies to proceedings brought under section 7(1)(a).

187. Fifth, the appellants rely on the provisions of s.100 as implying or indicating the existence on the part of a victim to claim damages for any ultra vires act or omission incompatible with Convention rights. That negatively framed section was not in the original bill introduced in January 1998; it was introduced only late in the passage of the bill on 6th October 1998. It would seem a surprising place to find so important a provision as the appellants suggest this to be. Further, if it was the section’s role or effect to recognise a right to claim damages in relation to Convention rights, one would have expected Parliament also to address the question mentioned in the previous paragraph, viz whether a claim to damages is available in the event of other instances of excess of devolved competence.

188. The general impression given by s.100 is that, far from providing or confirming the existence of an alternative remedy free from the time limit restriction in the Human Rights Act, it was intended to ensure consistency with that Act. S.100(1) does just that by introducing the victim requirement, while s.100(2) qualifies that restriction in relation to the Lord Advocate, the Advocate General and the Attorney General. So it is that Mr O’Neill falls back on s.100(3) as indicating that a right to claim damages must exist for any legislation, act or omission outside devolved competence under the Scotland Act because incompatible with a Convention right. S.100(3) provides that “This Act does not enable a court …. to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act applied”. The unlikelihood that this negatively framed subsection was intended to imply or recognise a positive right to claim damages is not to my mind reduced by the comparison which Mr O’Neill drew between it and s.8(3) of the Human Rights Act. S.8(3) follows s.8(1) and (2) as well as the provisions of s.7(1), all of which make clear in positive terms that unlawfulness under the Human Rights Act gives rise to a privately enforceable complaint in respect of which the court may as a matter of discretion award damages. No equivalent of these subsections, or other provisions, exists in the Scotland Act. This is a powerful pointer in my view against any conclusion that s.100(3) of the Scotland Act creates, or assumes the existence under the Scotland Act of, duplicate claims to just satisfaction in respect of acts incompatible with Convention rights and outside devolved competence.

189. As to what s.100(3) in fact achieves, taken in context, one clear possibility identified by the Inner House (paragraph 80) is that it was inserted as a matter of major caution. After preparing the main part of this opinion I had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote. He gives to my mind convincing reasons for preferring this conclusion even if the subsection is not actually necessary. But a particular situation to which I consider it may well also have been directed is that considered in paragraphs 176 to 179 above. Take a common law claim which succeeds solely because an act is unlawful as being incompatible with the Human Rights Act (as where the unlawfulness is relied upon by a claimant in reply to a defence). If s.8 would govern this situation under the Human Rights Act, then s.100(3) of the Scotland Act ensures that the same discretionary measure of recovery applies if a claimant chooses to defeat the defence on the basis that the act is outside devolved competence under the Scotland Act. Even if s.8 were held not to cover such a situation (and there is as yet no identifiable authority on the point), the considerable possibility that the drafters of both Acts or of the Scotland Act contemplated that it would or might do so is itself sufficient to explain the inclusion of s.100(3).

190. Sixth, I do not find it surprising that Parliament should in the Scotland Act have regulated matters of competence and vires, leaving claims for damages to be dealt with under the Human Rights Act. Where claims in both categories are pursued, no difficulty exists in combining them in one set of proceedings. Nor do the different dates on which the main provisions of the two Acts came into force militate against this conclusion. Incompatibility with Convention rights could be raised or relied upon as rendering invalid any Scottish legislation, act or omission taking place during the period of about 17 months between the coming into force of the Scotland Act in May 1999 and the coming into force on 2nd October 2000 of the Human Rights Act. But claims for damages could only arise in respect of Convention incompatible legislation, acts or omissions occurring after the Human Rights Act came into force. That represents a coherent scheme – the alternative to my mind does not. Invalidity is one thing, exposure to damages another. It is understandable that Parliament should not to wish to expose the Scottish Parliament, Ministers or Executive to claims for damages for Convention-incompatible conduct long before there was any exposure to such claims in any other United Kingdom context.

191. S.129(2) of the Scotland Act also provided that if various provisions of the Scotland Act should come into force before the Human Rights Act had “come into force (or come fully into force)”, these provisions should have the same effect as they would have after the Human Rights Act was fully in effect. Such provisions included sections 29(2)(d) and 57(2) and (3) (making it competent for the Scottish Parliament or Executive to legislate or act incompatibly with Convention rights) as well as section 100. I do not consider that anything can be deduced from the wholesale reference here to section 100. It was on any view necessary to refer to sections 100(1), (2) and (4) and, since section 129(2) covered the possibility that unspecified parts of the Human Rights Act might not yet have come into force, there was reason to cover every possibility by embracing s.100(3) also. In any event, however, I regard this point as marginal and incapable of determining the first issue.

192. Seventh, when considering the proper interpretation of the Scotland Act, it is improbable that Parliament envisaged or intended that damages claims in respect of breaches of Convention rights could be brought under the Scotland Act free of the one year time limit applicable to such claims under the Human Rights Act. The improbability is increased when arguments of competence under the Scotland Act only arise in relation to legislation or acts of the Scottish Parliament, Ministers and Executive. Such arguments cannot arise in relation to the acts of other public authorities not part of and not treated (under the principle in Carltona Ltd v. Commissioners of Works [1943] 2 AER 560) as acting on behalf of the Scottish Executive . This latter category includes judges (cf s.9 of the Human Rights Act), and other office- holders with a role independent of the Executive. In answering issue (2) (below) the House is at one in concluding that this category also includes a Prison Governor. It is doubly improbable that Parliament intended that certain Scottish public authorities should benefit by the time limit in s.7(5) of the Human Rights Act in the defence of claims against them for conduct incompatible with Convention rights, whereas others certainly do not.

(e) Conclusion on issue 1

193. I find myself, as a result, in full agreement with Lord Reed in the High Court of Justiciary in HM Advocate v R 2001 SLT 1366, para. 40, when he said that “Where the act is not delictual under the ordinary law, then section 57(2) [of the Scotland Act] does not confer upon the court a power to award damages” and that in that situation “the only effective remedy may lie under sections 7 to 9 of the Human Rights Act”. The same conclusion is spelled out by the Inner House in para. 80 of its opinion in the present case, where, while recognising that issues of vires could be raised under the Scotland Act, the Inner House held that “there is no need to look for a basis for a claim for damages in the Scotland Act” when ss.7 and 8 of the Human Rights Act provided one. With this, I agree. On appeal to the Judicial Committee of the Privy Council in HM Advocate v R [2002] UKPC D3; [2004] 1 AC 462, I understand my noble and learned friends, Lord Hope of Craighead (at para. 50-51) and Lord Rodger of Earlsferry (at paras. 121-123) to have been addressing an either-or choice between two extreme analyses - either the Scotland Act gave rise to no constitutional remedies at all or all remedies including damages in respect of any infringement of Convention rights leading under the Scotland Act to invalidity of Scottish legislation or of an act or omission of the Scottish Ministers or Executive had to be found in or by reference to that Act. Neither analysis would in my opinion be correct. The situation is different from that considered in Simpson v. Attorney-General (Baigent’s Case) [1994] 3 NZLR 667, where the unattractive argument advanced to the New Zealand Court of Appeal was that there was no relevant remedy in damages at all in respect of breach of the New Zealand Bill of Rights Act 1990. Here there is a closely related constitutional measure, the Human Rights Act, which explicitly provides for the relevant remedy. The correct analysis is a nuanced analysis which recognises the different functions of the two Acts. The Scotland Act regulates the competence of the Scottish Parliament and Executive and enables its control (at the instance of a “victim”, or of the Lord Advocate, Advocate General or Attorney General representing the public interest). One (though only one) aspect of competence is compatibility with the Convention. But claims for damages for conduct incompatible with Convention rights belong to the context of the Human Rights Act.

194. For these reasons, I would dismiss the appeal on issue 1 and hold that the appellants’ damages claims against the Scottish Ministers can only be pursued under ss.6-8 and are subject, therefore, in particular to the time limit in s.7(5) of the Human Rights Act.

Issue 2 – does a Prison Governor’s order under rule 80(1) count as an act of the Scottish Ministers?

195. This question arises from the submission made by both the Scottish Ministers and the Lord Advocate as intervener that the appellants’ complaints about the Prison Governors’ exercise of their powers under rule 80(1) of The Prisoners and Young Offenders Institutions (Scotland) Rules 1994 (1994 No. 1931 (S.85)) do not involve any claim against the Scottish Ministers, and, even if the appeal succeeds on issue 1, can therefore only be pursued under ss.6-8 of the Human Rights Act. Although I consider that the appeal on issue 1 should fail, issue 2 is not entirely academic, since it raises the question to what extent the Scottish Ministers (the only respondents in the present proceedings) are answerable for the alleged acts or defaults of the Prison Governors. In my view the Scottish Ministers’ and Lord Advocate’s submission on this point is correct for the reasons more fully given by my noble and learned friend Lord Rodger or Earlsferry in his opinion. The Carltona principle does not apply to the acts or omissions of persons exercising an independent decision-making function, not as part of or on behalf of the Scottish Ministers. Such persons have of course to exercise their functions compatibly with the Convention rights. But the remedy in the event of failure to do so is, on any view of the answer to issue 1, under the Human Rights Act.

Issue 3 – the running of time under s.7(5) of the Human Rights Act

196. As Lord Hope explains (para. 5) this issue only affects the petitioners Henderson and Blanco. Henderson commenced proceedings more than one year after the end of four of the periods of segregation of which he complains. Blanco commenced proceedings on 6 November 2003, in respect of his segregation under a series of orders made over time between 1 August 2002 and 7 January 2003. Each order made in the cases of Henderson and Blanco was initially made by the Prison Governor for a maximum period of 72 hours, but was within that period authorised and so extended by the Scottish Ministers for one month from the expiry of the 72 hour period: cf rule 80(1), (5) and (6). It was under rule 80(7) open to the Prison Governor at any time to cancel such an order or to vary it to restrict its effect. Potentially, therefore, Henderson and Blanco have complaints about the making and/or authorisation of each order and/or about the Prison Governor’s failure to cancel or vary it during its operation.

197. Assuming that s.7(5) of the Human Rights Act applies, the language of s.7(5) appears to me clear-cut. The starting point is to identify “the date on which the act complained of took place”. Each monthly order and authorisation constitutes for that purpose a separate act. Subject to any shorter time limit, a segregated prisoner who complains of segregation pursuant to any such order or authorisation must do so within one year of the relevant order or authorisation under s.7(5)(a), or ask the court to grant an “equitable” extension under s.7(5)(b). Similarly, so far as the complaint is that during any monthly period the Prison Governor failed to exercise his power under rule 80(7) to cancel or vary, that complaint can under s.7(5)(a) only relate to any such failure occurring within the year prior to the bringing of proceedings, or otherwise the court’s discretion must be invoked under s.7(5)(b). No doubt, the court’s equitable discretion would be exercised to take account of the fact of continuing segregation (although segregation does not equate with absence of access to legal assistance) as well as the undesirability of confining attention to only part of an overall picture. The fact of any prior segregation (even if the time limit did prevent it being the subject of any claim) would also be relevant when considering the justification for any subsequent segregation in relation to which any complaint was not time barred.

Issue 4 - proportionality

198. I agree with Lord Hope’s observations on this issue and his conclusion that it would not be appropriate to decide it in the present circumstances.

Issue 5 – inspection by the judge of the redacted documents

199. On 21 July and 18th August 2004 the Lord Ordinary granted diligence, or made an order, against the havers, the Scottish Ministers, for the recovery, or disclosure, of documents listed in a specification. These included documents showing or tending to show the applications and grants of authority to segregate, assessments of the need to segregate and incident and intelligence reports. Evidently, the Lord Advocate had already made plain that documents or parts of documents would be withheld on grounds of public interest immunity (“PII”), since, on the same occasion, the Lord Ordinary acceded to a procedure set out in a protocol agreed between counsel, whereby counsel for the petitioners was to be permitted to inspect such documents, with the names and addresses obscured of any informer and of any other person whose identity, if disclosed, would put that person at risk of harm. This procedure was explained to be for the purpose of counsel for the petitioners advancing any argument that the court should override the claim to PII. Counsel undertook not to disclose the contents of the documents to any other person, including his clients or their agents, unless and to the extent that the court should override the PII claim. Counsel was permitted to make laptop notes of the documents seen, but not to print them out or transmit them elsewhere, and undertook to delete them from the hard drive after all issues relating to the assertion of PII had finally been resolved.

200. Inspection took place on this basis. Subsequently, the Minister for Justice by certificate dated 21 October 2004 stated that she had inspected the full unredacted text of the documents and on that basis made a formal PII claim in respect of references, names and passages in the documents. The claim went extensively beyond the limited redactions in the documents inspected by counsel for the petitioners. Its effect was that in a number of cases the whole document was blanked out, while in others a highly redacted version was provided. The public interest claimed related to matters such as the identity of informers, the nature and source of information received, the identity, deployment or training of staff and operational information, capabilities, techniques, tactics and methods, all capable of giving rise to considerations of public interest immunity.

201. The House was shown examples of the more extensively redacted documents, and was told that there are some 75 now in issue. No comment is possible on those documents which are completely blanked out. It cannot be known into what category they fall. Some comments may be made about the documents which are partially obscured. For example, the standard prison information and intelligence report form lists four possible categories of source, ranging from a source which has “proved to be reliable in all instances and where there is no doubt about authenticity and competence” to “a previously untried source or a source who so far has proved unreliable”. Mr O’Neill submits with force that the justification for segregation on the basis of information and intelligence may well depend upon which category of source has provided the same. Yet the category of source (and not simply any name) is obscured in many documents. So also is the evaluation and even the action taken. Contemporaneous accounts of alleged incidents leading to segregation orders have also been deleted.

202. The petitioners in these circumstances sought full disclosure (subject to the redactions made to the documents as seen by their counsel), and they invited the Lord Ordinary to inspect the relevant documents for herself to form a judgment on the balance between the public interest and the interests of justice in relation to the petitioners’ claims. She declined to inspect and the Inner House upheld her decision. She said that counsel had failed specifically to identify any particular document as required in the furtherance of any specific issue or as relating to any particular period of segregation. Her primary reason for rejecting the submission that matters bearing on the evaluation of intelligence material should be revealed was her decision that the case that the segregation was disproportionate was inadmissible. But whether the segregation was disproportionate remains a potentially relevant issue in relation to the petitioners’ claims which are based on the Convention. The Lord Ordinary nevertheless declined herself to inspect, taking the view that this would fall foul of Lord Fraser of Tullybelton’s injunction in Air Canada v. Secretary of State for Trade [1983] 2 AC 394, 436C-D that it “should …. not be encouraged to ‘take a peep’ just on the off chance of finding something useful”.

203. I must start by expressing disagreement with the Inner House’s view that the course adopted under the parties’ protocol and endorsed by the Lord Ordinary is to be encouraged. On the contrary, in my view. It involves disclosure to another party’s (here the petitioners’) counsel of material which the public interest may require should not be disclosed to anyone other than the Scottish Executive. It puts counsel in an invidious and unsustainable position in relation to his or her client. In this respect the observations in R v. Davis [1993] 1 WLR 613, 616H-617H per Lord Taylor of Gosforth CJ, R v. Preston [1994] 2 AC 130, 152H-153D, per Lord Mustill and R v. B & G [2004] EWCA Crim 1368, para. 13, per Rose V-P are relevant, although made in a criminal context. As in this case, such a procedure may also put counsel into a position where he or she is uncertain what it is permissible to disclose or say when making submissions to the court about PII.

204. The procedure has no precedent of which I am aware in the present context, and should not become one. As in a criminal context, issues of PII should so far as possible be discussed in open court in the presence of both parties. In some circumstances, the nature of the documents may make it appropriate for the judge to hear submissions (and if necessary evidence) from the haver in the absence of anyone else, and even for the claim to PII itself only to be made ex parte. If a PII claim cannot be determined on the basis on which it is advanced without further consideration of the content of the relevant documents, it is for the court itself to undertake the task of inspecting the documents to confirm whether or not the documents should be provided to the party applying for them and with what if any redactions. The court may in exceptional circumstances consider it appropriate to invite the appointment of independent counsel to give it assistance (compare R v. H [2004] 2 AC 134, paras. 22 and 36(4) per Lord Bingham of Cornhill).

205. The House in the Air Canada case considered that there was a threshold to be crossed before a court would agree to inspect documents for itself. There was some variation in the language in which this threshold was expressed. Mere relevance is clearly not sufficient, since a claim to PII necessarily postulates relevance. The test of inspection adopted by Lord Scarman was “likelihood that the documents will be necessary for disposing fairly of the case or saving costs” (p.445B); he added that “if …. the court should think that the documents might be ‘determinative’ of the issues …., the court should inspect” (p.445B). As Professor Adrian Zuckerman observes in Civil Procedure (2nd ed.) para. 18.19, too rigid an application of the threshold requirement would mean that a claim to PII would become automatic in many cases, depriving the balancing exercise of meaningful content. Different considerations may, as he goes on to point out, apply where national security is in issue.

206. In the present case the matters in respect of PII is claimed are unrelated to national security, but they centre on decisions to segregate and to continue segregation which are said by the petitioners to have been unjustified and/or unreasonable or disproportionate. The documents are presently redacted in a way which appears likely to make it either impossible or extremely difficult to understand or evaluate the actual decision-making process. The basis for and reasoning behind the decisions are central to any resolution of the issues raised by the petitioners’ claims. The petitioners by their claims challenge any suggestion that they were involved in any conduct justifying their segregation or continued segregation. The apparent centrality of the contents of the documents to the issues raised by the claims cannot or should not be dismissed at this stage on a basis which comes close to simply assuming that the claims have no real foundation. Whether this is so, and what support the documents may give to the petitioners’ evidence, can only sensibly be judged by inspection. Counsel for the petitioners, who has (however inappropriately) seen the documents in a largely unredacted form, was able to submit to the judge that they were of real importance to his clients’ claims. He felt, not surprisingly, inhibited about the extent to which he could base any specific submissions on the fuller contents of documents that he had seen.

207. I consider that, in the circumstances of this case and bearing in mind the apparent centrality of the documents to the issues which it involves, the Lord Ordinary ought to have acceded to the application to

inspect the documents for herself. Neither the number nor the nature of the documents involved would appear to have presented any obstacle. It would also have proved a simpler, quicker and certainly more appropriate procedure than that which has led to the appeal on this issue.