Introduction

In the landmark case S v Scottish Ministers [2020] ScotCS CSIH_64, the Scottish Court of Session examined the interplay between prisoners' rights under the European Convention on Human Rights (ECHR) and the Public Sector Equality Duty (PSED) as outlined in the Equality Act 2010. The petitioner, a convicted prisoner serving a life sentence with a punishment part of 33 years, sought judicial review against the Scottish Ministers’ refusal to grant escorted day absences (EDA) to visit his frail and dementia-stricken grandmother.

The core issues revolved around the interpretation and application of the Prison Rules, the adequacy of the Supplementary Guidance provided by the Scottish Prison Service (SPS), and whether the decisions adhered to the PSED, particularly concerning indirect discrimination based on disability.

Summary of the Judgment

The petitioner challenged two specific refusals of EDA applications made in May and July 2019, arguing that these decisions breached his Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the ECHR. He further contended that the Supplementary Guidance for EDA lacked certainty and failed to comply with the PSED requirements.

The Lord Ordinary initially refused permission for judicial review, deeming the petition unmeritorious and the issues theoretical. However, upon appeal, the Scottish Court of Session's Inner House found that the petition had a real prospect of success. The appellate court emphasized that the petition raised substantial questions about the application of the PSED in policy formulation and its impact on prisoners’ ECHR rights, thus necessitating a full hearing.

Consequently, the court allowed the appeal, recalled the prior decision, and granted permission for the petition to proceed, signaling a pivotal moment in the consideration of prisoners' rights and equality duties within the Scottish legal framework.

Analysis

Precedents Cited

The judgment referenced several key precedents to establish the legal framework governing the case:

• Hurley and Moore v Secretary of State for Business Innovation and Skills [2012] HRLR 13 - Highlighting the necessity for public bodies to eliminate discrimination and advance equality of opportunity.
• Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 - Reinforcing the duty of public bodies under the Equality Act.
• Hotak v London Borough Council [2016] AC 811 - Detailing the general principles of the PSED.
• Nyamayaro v Secretary of State for the Home Department 2019 SC 537 - Discussing the scope and application of the PSED in policy formulation.
• Lind v Russia (2010) 50 EHRR 5 - Establishing the right to respect for family life under Article 8 of the ECHR.
• Konstantin Markin v Russia (GC) [2012] EHRR 514 - Expanding the interpretation of Article 14 as it applies to other Convention rights.

These precedents collectively underscored the obligations of public bodies to integrate equality considerations into their policies and actions, ensuring that they do not inadvertently discriminate against protected groups.

Legal Reasoning

The court meticulously analyzed whether the refusals of EDA constituted a breach of the petitioner’s Article 8 and Article 14 rights. Central to this analysis was the interpretation of the PSED and its application to the Supplementary Guidance provided by the SPS.

Public Sector Equality Duty (PSED): The court emphasized that the PSED requires public bodies to have due regard to the need to eliminate discrimination and advance equality of opportunity. In this case, the SPS’s Supplementary Guidance was scrutinized for its compliance with both general and specific equality duties, particularly regarding disabled individuals.

Discrimination by Association: The petitioner argued indirect discrimination based on his grandmother’s disability, suggesting that the refusal to grant EDA disproportionately affected him compared to other prisoners without disabled relatives. The court acknowledged this as a potential breach of Article 14 in conjunction with Article 8.

Exceptional Circumstances and Policy Formulation: The petition highlighted that the SPS’s policy favored one-off events for granting EDA, which was unsuitable for ongoing circumstances like a relative’s chronic disability. The court found merit in this argument, indicating that rigid policy frameworks may fail to accommodate nuanced individual needs.

Ultimately, the court concluded that the petition raised substantial questions about the SPS’s adherence to the PSED and the proper balancing of prisoners' rights with institutional policies, warranting a full judicial review.

Impact

This judgment has far-reaching implications for the administration of prison policies and the broader application of equality duties within public institutions:

• Strengthening Equality Duties: Public bodies, including prison services, are reminded of their obligations under the PSED to consider the needs of all protected groups, ensuring that policies are inclusive and non-discriminatory.
• Enhanced Protection of Prisoners’ Rights: The case underscores the importance of balancing security concerns with the human rights of prisoners, particularly regarding their family life and privacy.
• Policy Flexibility: Institutions may need to revise rigid policies to accommodate individual circumstances, especially for those involving chronic or long-term disabilities.
• Judicial Oversight: The decision reinforces the role of the judiciary in scrutinizing public bodies’ compliance with equality duties and human rights obligations.

Overall, this case serves as a catalyst for reviewing and potentially reforming prison policies to align more closely with equality and human rights standards.

Complex Concepts Simplified

Conclusion

The case of S v Scottish Ministers [2020] ScotCS CSIH_64 marks a significant development in the application of equality duties within the Scottish legal system, particularly in the context of prison administration. By allowing the appeal, the Inner House acknowledged the substantial concerns regarding the SPS’s compliance with the Public Sector Equality Duty and the potential infringement of the petitioner’s ECHR rights.

This judgment not only reinforces the necessity for public bodies to integrate equality considerations into their policies and practices but also enhances the protection of prisoners' rights, ensuring that their private and family lives are respected even within the confines of incarceration. The decision serves as a precedent for future cases, emphasizing that rigid, one-size-fits-all policies may fail to address individual needs and can lead to inadvertent discrimination.

Moving forward, public institutions must undertake diligent assessments of their policies through the lens of equality duties, ensuring that they accommodate diverse circumstances and uphold the fundamental human rights of all individuals, including those within the prison system.