Scotland Act 1998 (Modification of Schedule 4) Order 2009

My Lords, I, too, thank the noble and learned Lord the Advocate-General for Scotland for introducing this order and for his explanation of it. I declare an interest as a member of the Commission on Scottish Devolution, the Calman Commission, to which the noble and learned Lord referred, and which recommended—I think the request came from the Secretary of State for Scotland—to him that a course of action similar to what we now have before us should be followed. It is a welcome step to bring into line with human rights legislation the position in Scotland for those who are seeking to raise actions against public authorities—at least on grounds of breaches of human rights; the specific point is that it is not being done under human rights legislation but under the Scotland Act—by making the time limit the same. It is my understanding that the time limit of one year was introduced somewhat late in the day when the Human Rights Act 1998 was going through Parliament. Although the then Scotland Bill was running in parallel, no one seems to have picked up the potential for different time limits to apply. It makes some sense now to bring both into line. The noble Duke, the Duke of Montrose, raised a question about the usual timescale for issuing Cabinet Office guidelines for legislation not being followed. There is certainly a degree of urgency here, given the sums of money involved. That in itself raises a number of questions. It is my understanding that this order paves the way for the Scottish Parliament to take forward legislation, possibly emergency legislation. Perhaps the Advocate-General can confirm that that is the case. It is also my understanding—indeed, it was indicated by the Scottish Justice Secretary Kenny MacAskill on 11 March this year—that on the day after the Somerville judgment was issued he wrote to the Lord Chancellor setting out the case for change and seeking urgent action. That was on 25 October 2007, almost 19 months ago. The Lord Chancellor agreed that this was an important issue and that he and his colleagues were engaged constructively on it. However, in December last year the Lord Chancellor told Scottish Ministers that the United Kingdom Government were not persuaded of the case for action. It is very welcome that within less than three months they were persuaded. Perhaps the Advocate-General could shed some light as to why some 14 months went past, with comings and goings that led to the United Kingdom Government not being persuaded, only to change their minds within two or three months. It is a welcome change of mind and there should be some rejoicing over the sinner that repents. Some explanation for the delay would be very welcome. The Law Society of Scotland has issued some concern about lack of consultation. That is certainly understood, given the pressing need and urgency which has been described in the Scottish Parliament. It is important also to recognise that, if subsequent legislation passes through the Scottish Parliament, this order will affect not only the slopping-out cases to which the noble Duke referred and that all human rights cases will be subject to this time limit. Perhaps the Advocate-General can confirm that the time limit of one year is longer than the six-month time limit required for cases going to the European Court of Human rights in Strasbourg. Finally, what is the position of those who already have an action in court in respect of an alleged breach which took place more than a year ago? Are actions currently in court covered by any legislation which subsequently brings the time limit into line with the two jurisdictions?