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)

 
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HOUSE OF LORDSSESSION 2006-07 [2007] UKHL 44 on appeal from: OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSESomerville (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 Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord ManceCounselAppellants: Aidan O'Neill QC Ailsa Carmichael Simon Collins Balfour & Manson (Instructed by Taylor & Kelly)Respondents: Gerry Moynihan QC James Wolffe Douglas B Ross (Instructed by Solicitor to the Scottish Executive)IntervenerAdvocate 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 2007ON WEDNESDAY 24 OCTOBER 2007HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSESomerville (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 44LORD HOPE OF CRAIGHEADMy 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.Background4.  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...

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