Scottish Human Rights Law Group

“The Scottish Government has today (16 June 2009) published the CONVENTION RIGHTS PROCEEDINGS (AMENDMENT) (SCOTLAND) BILL which it is introducing before the Scottish Parliament with a view to imposing a new one year time bar on all Convention rights based claims taken against the Scottish Ministers.

This new one year time limit has been imposed without public consultation and by using emergency legislation procedure which means that there will be no detailed scrutiny of or evidence received on the Bill and its implication for Scottish society by any Committee of the Scottish Parliament.  Instead it is intended that the Bill be passed in
one day on Thursday 18 June (only two days after publication of the Bill) with the whole Parliament convening itself as a Committee.

No proper reason has been given by the Scottish Government as to what emergency exists that requires this Bill to be pushed through in this manner.

“Act” of the Scottish Ministers is said for the purposes of the Bill not to include the making of any legislation but it does include “any other act or failure to act (including a failure to make legislation).”   When the new one year time limit might begin to run in relation to “failure to act” is left unclear in the Bill. The new one year maximum time
bar would apply to both civil and criminal proceedings.

In their Policy Memorandum accompanying the Bill the Scottish Ministers claim that the effect of passing the Bill into law will be that “any claims brought against the Scottish Ministers or a member of the Scottish Executive, grounded wholly or partly on an alleged breach of Convention rights” will be subject to the new one year time limit. If this is correct then it would appear that, for example, personal injuries actions brought against the Scottish Government which rely in part on breach of Convention lights will now be subject by a side-wind to a one year time limit rather than the existing three year prescription period.

The measure which was originally proposed by the Scottish Government wholly failed to take into account Convention and EU rights case law to the effect in the absence of adequate transitional provisions, the manner and introduction of new statutory time limits such as this withretrospective effect may itself contravene parties’ Convention rights and legitimate expectations in being able to raise proceedings on the basis of the earlier rule (to the effect that the claimants’ undue delay in raising proceedings which had been relied upon by the Scottish Ministers might bar the claimant from proceedings with an action). The Bill as introduced now gives a four month period of grace until 2 November 2009 for Convention rights cases to be raised in respect of action or inaction by the Scottish Ministers pre-dating 2 July 2008. Whether this is sufficient to avoid a successful challenge to the Convention compatibility of the manner and form in which the new time limits are being introduced remains to be seen.”

The Bill and related materials are available to view here

A SPICe article on the Bill, by Richard Hough, is available to read here