The Law Society of Scotland has expressed serious concerns about the lack of consultation on a Bill set to introduce a one-year time bar for claims against Scottish Ministers for breaches of human rights in a letter sent to all MSPs yesterday.

The Convention Rights Proceedings (Amendment) (Scotland) Bill was introduced in Parliament on Monday 15 June and, under the Parliament’s emergency procedure, will be debated at all three stages on Thursday, 18 June, with the intention that it will be passed that day.

The introduction of a one-year time bar would enable Scottish Ministers to draw a line under their liability in relation to claims made for “slopping out” after the case of Somerville v Scottish Ministers. Once passed, the Bill would achieve consistency between the time bar for devolution issues under the Scotland Act and the time bar period under the Human Rights Act 1998.

The Law Society said in a statement that the lack of consultation, coupled with the use of the Parliament’s emergency procedure limited the opportunity to consider the full impact of the Bill.

Michael Clancy, Director of Law Reform said: “This is an important measure which will have the effect of limiting the capacity of those who may have had their human rights infringed by Scottish Ministers, from taking appropriate action to vindicate their human rights.

“While the Society agrees with the general proposition that there should be consistency between the time bar under the Scotland Act and the Human Rights Act, the point in which the time bar period starts to run from is an issue which requires considerable debate. The procedure adopted for this Bill is very limited for proper consideration of such an issue.”

The full text of the letter sent to all MSPs is as follows:

Dear Member

Convention Rights Proceedings (Amendment) (Scotland) Bill

The Society has considered this Bill and has the following comments to make:-

The Society agrees that the position of Scottish Ministers under the Scotland Act is anomalous in comparison with the position of other public authorities in Scotland and the UK Government in respect of devolution issues arising out of actions by Ministers allegedly incompatible with the European Convention on Human Rights.

The Cabinet Secretary for Justice, Kenny MacAskill MSP, in his announcement in the Parliament on 11 March informed the Parliament of progress since the case of Somerville v Scottish Ministers [2007] UK HL44. That case concluded that in the absence of an explicit statutory time bar in the Scotland Act 1998, claims could be made under that Act against Scottish Ministers which would not be permissible under the Human Rights Act 1998 because that Act contains an explicit time bar.

The Society notes that the introduction of a one year time bar would enable the Scottish Ministers to draw a line under their liability in relation to claims of the kind being made in respect of the Somerville judgement.

There has been no wide consultation on this Bill. The Society appreciates the desire to legislate as quickly as possible but the lack of consultation and the employment of the Parliament’s emergency procedure limit the opportunity to consider the total impact of the Bill. This is an important measure which will have the effect of limiting the capacity of many people, who may have had their human rights infringed by Scottish Ministers from taking appropriate action to vindicate their human rights.

Nevertheless, the Society agrees with the general proposition that there should be consistency between the time bar period for devolution issues under the Scotland Act and the time bar period under the Human Rights Act 1998.

There may be a question as to whether one year is the correct period for the time bar. It is also appropriate that an extension of the period of one year is permitted under new Section 100 (3B)(b) for such “longer period as the court or tribunal considers equitable having regard to all the circumstances”. That provision should ensure that the strict one year period is mitigated in appropriate circumstances.

Another issue which relates to the time bar period is the point at which the year begins to run. The Bill provides in new Section 100 (3B)(a) that the period of one year begins “with the date on which the act complained against took place”.

This may conform with the Human Rights Act 1998, Section 7 but is at odds with other limitation periods in Scots Law such as the three-year period under Section 22B of the Prescription and Limitation (Scotland) Act 1973. That period runs from the earliest date on which the person seeking to bring the action was aware of the basis of the action. The Society is of the view that this start point of awareness is fairer than the objective basis in the Bill. The Society has formulated amendments (which are attached) to deal with this point.

I hope that these comments are helpful.

Michael Clancy