Somerville v. Scottish Ministers (Scotland)

Factual and Procedural Background

The four Petitioners, each serving custodial sentences, contested the legality of their segregation (“removal from association”) under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. The litigation began in the Court of Session, where numerous interlocutory questions were identified for decision before any evidence was led. After the First Division ruled on several matters, five issues were certified for appeal to the House of Lords. No final orders on the merits of the segregation have yet been made; the judgment summarised here determines only the legal issues identified below.

Legal Issues Presented

1. Whether a claim for damages for breach of Convention rights can be pursued under the Scotland Act 1998 free of the one-year time limit in section 7(5) of the Human Rights Act 1998.
2. Whether an order made by a Prison Governor under rule 80(1) is, for competence purposes, an act of the Scottish Ministers.
3. (Contingent) From what point does time run under section 7(5)(a) HRA when segregation is effected through successive monthly orders?
4. Whether proportionality is an independent ground of judicial review at common law, in addition to Wednesbury unreasonableness.
5. The correct procedure when public-interest immunity (PII) is asserted over prison documents—specifically, whether the judge must inspect the redacted material personally.

Arguments of the Parties

Petitioners’ Arguments

• The Scotland Act creates a freestanding entitlement to “just satisfaction” damages where Scottish Ministers act outside devolved competence; such claims are not caught by the HRA one-year limit.
• For competence purposes, a Prison Governor acts as an agent of the Scottish Ministers; therefore Governor decisions are equally subject to the Scotland Act regime.
• Time under section 7(5) HRA should run from the end of a continuous period of segregation, or the time bar should be equitably extended.
• Proportionality is a distinct common-law ground of review and remains relevant even where Convention arguments are pleaded.
• The Lord Ordinary was obliged to inspect, herself, the documents over which PII was claimed before refusing disclosure.

Scottish Ministers’ Arguments

• The only route to damages for Convention breaches is via sections 6–8 HRA; therefore the statutory one-year limit applies.
• A Prison Governor exercising rule 80(1) is performing a discrete statutory function; the Ministers are not vicariously responsible for those acts.
• For HRA purposes each monthly segregation order is a separate “act”; time therefore runs from the date of each order.
• Common-law proportionality adds nothing where Convention proportionality is already in play.
• The Lord Ordinary lawfully exercised discretion not to inspect the PII material absent specific demonstration of relevance.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1: By a majority, the House held that the Scotland Act envisages its own system of remedies where acts of the Scottish Executive are ultra vires for Convention incompatibility. Section 100(3) SA assumes the court can award “just satisfaction” damages, limiting those to what would be available under section 8 HRA; crucially, it contains no reference to the HRA one-year time bar. Therefore a damages claim framed as a Scotland Act ultra vires challenge is not subject to section 7(5) HRA. The minority considered this implication unsustainable, viewing the HRA as the sole source of damages jurisdiction.

Issue 2: Unanimously, the House accepted that a Prison Governor, when making or continuing a rule 80 order, exercises an independent statutory function. Such acts are not those of the Scottish Ministers and therefore cannot be impugned under the Scotland Act competence provisions; challenges to Governors’ decisions must proceed under the HRA, with the attendant time bar.

Issue 3: Given the majority’s conclusion on Issue 1, the detailed time-bar question became largely academic. Nevertheless, dicta indicate that, where an “act” is properly analysed as a continuing one, time under section 7(5)(a) would run from the end of that act; if instead it is a series of discrete acts with continuing consequences, time runs from each individual act.

Issue 4: The House declined to strike out the Petitioners’ common-law proportionality averments. Whether proportionality exists as an autonomous common-law ground was left open; the pleadings should proceed to proof before answer.

Issue 5: The Lord Ordinary’s refusal to inspect the PII-redacted documents was set aside. The proper approach requires the judge, not counsel, to weigh the balance between the public interest and the fair administration of justice, which in this case demanded personal inspection of the disputed material.

Holding and Implications

Holding: The Petitioners’ appeals on Issues 1, 4 and 5 are ALLOWED; the Scottish Ministers’ cross-appeal on Issue 2 is ALLOWED; Issue 3 requires no dispositive order.

Implications: A claimant may obtain “just satisfaction” damages for Convention-incompatible executive action in Scotland without facing the one-year HRA limitation, provided the claim is framed as an ultra vires challenge under the Scotland Act. Segregation decisions of Prison Governors remain challengeable only under the HRA. The judgment underscores that proportionality arguments and PII disputes will receive close judicial scrutiny, and it re-emphasises the need for courts—not counsel—to evaluate sensitive material where public interest immunity is asserted.