Scotland Act 1998 (Modification of Schedule 4) Order 2009

My Lords, this order was approved by the other place last week. The purpose of the order is to amend Schedule 4 to the Scotland Act 1998. This will enable the Scottish Parliament to create a time limit for proceedings brought under the Scotland Act, where the proceedings allege that Scottish Ministers or a Member of the Scottish Executive have acted in breach of convention rights similar to that which exists in relation to such claims brought under the Human Rights Act 1998. By doing so we will achieve a pragmatic solution to an issue highlighted in the Somerville case before the Judicial Committee of this House. The Secretary of State for Scotland and the First Minister jointly announced on 19 March this year that this order would be introduced before Parliament and the Scottish Parliament. As required, the order has been laid in draft before both Houses of this Parliament and the Scottish Parliament. This order is made under Section 30(2) of the Scotland Act, which specifically provides a mechanism by which amendments may be made to Schedules 4 and 5 to the Scotland Act. Such orders can be used to adjust the boundaries of the Scottish Parliament's legislative competence by adjusting existing reservations or their exceptions, or by removing or adding matters from the list of reserved issues and protected enactments. This power has, of course, been used before. Since 1999, nine orders have been made under Section 30(2) of the Scotland Act. These orders demonstrate a pragmatic approach to the devolution settlement and the flexibility contained within the Scotland Act. Each case was examined on its merits to ensure that the functions are exercised at the appropriate level. This is a technical and relatively complex issue, and I hope I may explain the background. Under Section 6(1) of the Human Rights Act, it is unlawful for a public authority to act in a way which is incompatible with a convention right. If a person claims that a public authority has acted, or proposes to act, in a way which is made unlawful by Section 6(1), they may bring proceedings against the public authority under the Human Rights Act in the appropriate court or tribunal. A person is permitted to do so only if they are, or would be, a victim of the unlawful act. A "public authority" includes the Members of the Scottish Executive. The Human Rights Act thus represents the principal positive means by which legal protection is given to convention rights in our domestic law and by which individuals may seek redress for the breach of their rights. The Scotland Act, like the other devolution Acts for Northern Ireland and Wales, provides an additional route for claims to be brought. Convention obligations were written into the devolution Acts during the passage of the legislation through this Parliament. As a result, the Scottish Ministers, as with all devolved Ministers, must at all times act compatibly with convention rights. Section 100 of the Scotland Act states that proceedings under the Act against incompatible acts cannot be brought by a person unless they fall within the class entitled to bring proceedings under the Human Rights Act. It also limits any damages by reference to the Human Rights Act. The Human Rights Act requires that proceedings must generally be brought within one year from the date of the alleged breach, unless a stricter time limit applies to the proceedings in question. A court or tribunal may permit proceedings beyond this time limit if it considers it equitable, having regard to all the circumstances. The Scotland Act, however, makes no such provision. In the case of Somerville, this House ruled that those bringing their claim under the Scotland Act, notwithstanding the fact that the claim is identical in all other respects to a Human Rights Act claim, are not subject to the one-year limitation period under the Act. Such claims are subject only to general prescription and limitation principles under Scots law. In effect, this allows a longer period within which to raise proceedings pursuant to the Scotland Act. As I have said, Her Majesty’s Government and the Scottish Ministers worked together on this issue. The joint aim was to reach a pragmatic solution that allows an equivalent time limit to be put in place for claims brought under either the Scotland Act or the Human Rights Act. Following discussions between officials, agreement was announced on 19 March by the Secretary of State for Scotland and the First Minister. It was agreed to work together to facilitate a one-year time limit in Scotland by the summer. Her Majesty’s Government will seek the support of this Parliament to bring forward a comprehensive solution extending the same provision to the devolved Administrations in Wales and Northern Ireland, putting all the devolution settlements on a consistent footing and consolidating the changes to the Scotland Act, as soon as legislative time becomes available. The Scottish Parliament approved the order last week. Noble Lords may also wish to note that we sought the views of the Commission on Scottish Devolution—also known as the Calman Commission—which I understand supports this approach. This order therefore will enable the Scottish Parliament to pass legislation to provide for a time limit within the Scotland Act similar to that in the Human Rights Act, so that certain convention-based claims brought against the Scottish Ministers or a Member of the Scottish Executive, which may be based on the same facts and the same alleged unlawful act, are subject to the same time limit pursued under whichever Act. As a general rule, prescription and limitation periods in relation to claims brought in civil courts in Scotland are a devolved area of law. However, this matter requires modification of the Scotland Act to introduce the proposed time limit. Paragraph 4(1) of Schedule 4 to the Scotland Act provides that an Act of the Scottish Parliament may not modify, or confer power by subordinate legislation to modify, the Scotland Act itself. There are certain exceptions to this rule, and paragraph 4(2) of Schedule 4 lists those provisions in the Scotland Act which may be modified by the Scottish Parliament. This order inserts a new paragraph 4A into Schedule 4 to enable the Scottish Parliament to provide for a time limit for claims brought under the Scotland Act alleging breach of convention rights arising from certain acts of the Scottish Ministers or a Member of the Scottish Executive. It provides that any legislation enacted by the Scottish Parliament must provide for proceedings to be brought within a period of one year, beginning with the date on which the act complained of took place, or such longer period as a court may consider equitable. This is similar in effect to Section 7(1)(a) and Section 7(5) of the Human Rights Act. The limitation period is without prejudice to any shorter period applicable to the specific procedure and will not apply to claims about the making of legislation. The limitation period will also not apply to bringing of proceedings under the Scotland Act brought by myself as Advocate-General for Scotland or indeed any of the other law officers. The joint aim of Her Majesty’s Government and the Scottish Ministers is to protect the wider public interest. The measure seeks some consistency in the application of human rights legislation in the UK. This order and the anticipated legislation in the Scottish Parliament will substantially create a harmonised position between the Scotland Act and the Human Rights Act. I commend the order to the House.