Scotland Act and <a href="https://vlex.co.uk/vid/human-rights-act-1998-852419308">Human Rights Act</a>: together or apart?
The House of Lords returned to the complex issue of the relationship between the Scotland Act 1998 and the Human Rights Act 1998 in Somerville v Scottish Ministers [2007] UKHL 44, 2007 SLT 1113. The specific issue was whether prisoners bringing claims against Scottish Ministers in respect of various violations of their Convention rights were subject to the one-year time bar imposed by section 7(5) of the Human Rights Act. No equivalent time bar is found in the Scotland Act in respect of claims that Ministers or the Executive have acted beyond competence in violating Convention rights. By a majority of 3-2 the House held that the Human Rights Act time bar had no application in cases brought under the Scotland Act, the effect being that many more prisoners than previously thought will be able to bring claims in respect of such matters as “slopping out” and segregation (the issue in the Somerville case itself). The majority was formed by Lords Hope and Rodger with a brief contribution from Lord Walker; the vigorously dissenting minority was made up of Lords Scott and Mance, although the former engagingly confessed to several “embarrassing” changes of mind before reaching his final view (paras 68, 78). All the Law Lords united in their condemnation of the state of the pleadings in the case, and lamented the fact that the proceedings had so far lasted four years without reaching a proof. They cannot, however, have been as sad as the Scottish Ministers, who will have to find the funds to compensate all these prisoners whose rights they have been violating for all these years.
The decision overturns the view of the First Division (see 2007 SC 140), which had, perhaps rashly, characterised as mistaken previous (but undoubtedly obiter) dicta on the interpretation of the relevant parts of the Scotland Act by Lords Hope and Rodger in R v HM Advocate 2003 SC (PC) 21.
Setting down da cars in “Da Store”
On 17 October 2007 the House of Lords decided the case of Moncrieff v Jamieson [2007] UKHL 42, 2007 SLT 989. The case involved a dispute about access to a property known as “Da Store” to the east of Sandsound Voe, Shetland. This property was some way from the public road and required access by a servitude right of vehicular and pedestrian access over a neighbour's property. However, the owners of “Da Store” had no means of getting a car on to their property. It was accepted that they could load and unload on the neighbouring plot, but the House of Lords had to decide whether the right of access conferred with it a right of car parking. It was held that in the “particular and unusual circumstances” (Lord Hope at para 36, see also Lord Scott at para 63, Lord Rodger at para 98 and Lord Neuberger at para 124) of the case, the right to park on the neighbouring property was ancillary to the right of access held by the owners of “Da Store”. Members of the court were also ready to recognise the possibility of a stand-alone servitude of parking.
There are a number of other noteworthy elements in the case. First, while the Scottish judges provide a detailed analysis of Scottish authorities and (in Lord Rodger's speech) a sojourn in Rome to consider Maecianus and his attempts to provide a hut for his animals exercising a right of pasture on neighbouring property (para 75), the English judges make little reference to Scottish authority. For example, among the sixteen cases cited by Lord Neuberger, more are Australian (three) than Scottish (two).
Secondly, Lord Rodger's speech contains detailed reference to an unreported – and hitherto unknown – House of Lords case from 1967. The case, Chalmers Property Investment Co Ltd v Robson, is discussed at paras 77-82 of his speech and was a judgment of a bench including Lords Reid and Guest. The case was only reported at Outer House level (1965 SLT 381), the later First Division decision (in 1966) also remaining unreported. While the leading modern textbook on servitudes (D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998)) benefited from the researches of the authors in the sheriff courts of Scotland, digging out numerous unreported decisions to illustrate points, it now appears that time could also have been profitably spent at Westminster in the hunt for unreported decisions of the House of Lords.
Finally, those who buy property which, for one reason or another, turns out to be unsuitable will derive little comfort from Lord Rodger's robust approach (para 68):
What matters for present purposes, however, is that, unless by specific agreement, the seller of a house does not warrant that it is suitable for occupation by any particular type...
