Somerville (AP) (Original Appellant and Cross-respondent) v. Scottish Ministers (Original Respondents and Cross-appellants) (Scotland) Etc
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)
 UKHL 44
LORD HOPE OF CRAIGHEAD
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.
Issue 1: the relationship between the Scotland Act and the Human Rights Act
(a) Section 129(2) SA
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.
(b) Section 100 SA
Section 100(3) provides:
(c) Section 57(3) SA
(d) Why no section 7(5) HRA time bar?
(e) R v HM Advocate
Issue 2: whether section 54(3) SA applies to acts of the governor
Issue 3: when time begins to run under section 7(5)(a) HRA
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.
Issue 4: proportionality
Issue 5: inspection by the judge of redacted documents
LORD SCOTT OF FOSCOTE
LORD RODGER OF EARLSFERRY
The Vires Controls in the Scotland Act
The First Issue
As they went on to make clear, what they meant was that Parliament intended section 7(5) to apply to limit the time for bringing proceedings with reference to the vires limits in the Scotland Act as well as proceedings under the HRA.
In R v HM Advocate 2003 SC (PC) 21 I analysed the language of section 100. That analysis was not necessary for the decision in the case. The First Division were therefore entitled to depart from it. Which they did, holding that my construction of the section was erroneous: 2007 SC 140, 176, para 76. Rather than provide any competing detailed analysis of section 100, their Lordships contented themselves with saying, 2007 SC 140, 168-169, para 56:
Later their Lordships summarised their conclusion on section 100 in this way, 2007 SC 140, 177, para 80:
Here too, while saying that section 100 has been "distorted", they do not themselves address and analyse the language of the section. Without such an analysis, it is impossible to determine the meaning and purpose of the provision.
The Second Issue
The Third Issue
The Fourth Issue
The Fifth Issue
Similar guidance is to be found in the speech of Lord Bingham at p 656, para 5. If the Lord Ordinary reaches the stage when she has to determine the public immunity claim, then, as laid down in Science Research Council v Nassé, the test to be applied is whether production of the full version of the document to the petitioners is necessary for disposing fairly of the proceedings.
LORD WALKER OF GESTINGTHORPE
Issue 1: the relationship between the Scotland Act and the Human Rights Act in the context of claims based on breach of Convention rights
(b) The HRA s.7
(c) The HRA s.8
It also seems unlikely that Parliament should have taken care to ensure that claims brought in direct reliance on a Convention right should be subject to the principles applied by the European Court of Human Rights (cf s.8(3) and (4)), but at the same time have intended that the incorporation into domestic law of Convention rights should enable a claimant, by formulating his claim on a common law basis and relying on the Convention in reply to an otherwise available defence, to escape the carefully crafted discretion provided to the court under s.8. Accordingly, it seems to me quite likely and on any view very arguable that s.8 was meant to cover the situation of unlawfulness under s.6(1) invoked in reply to a defence otherwise available to the claim.
(e) Conclusion on issue 1
Issue 2 - does a Prison Governor's order under rule 80(1) count as an act of the Scottish Ministers?
Issue 3 - the running of time under s.7(5) of the Human Rights Act
Issue 4 - proportionality
Issue 5 - inspection by the judge of the redacted documents