(In)appropriate steps: HRA damages in BS v Scottish Ministers

1. Litigation

Background

An Order for Lifelong Restriction (OLR) is an exceptional sentence available only to the Scottish courts.[ii] It constitutes imprisonment for an indeterminate period, and is reserved for prisoners who are likely to seriously endanger the lives, or physical, or psychological well-being, of members of the public at large if at liberty.[iii] Prisoners sentenced to an OLR must remain in custody for the duration of a ‘punishment part’, a fixed number of years calculated with reference to the seriousness of the offence. Following the punishment part, prisoners are eligible to apply for parole.[iv]

In BS, the claimant was sentenced to an OLR with a punishment part of six years, beginning in September 2016. The claimant was not given access to a rehabilitative course called the Self Change Programme (‘SCP’), despite having been on the waiting list for a rehabilitative course since November 2017.[v] Upon the expiry of his punishment part in September 2022, the claimant did not seek release. He remained keen to complete the SCP and considered that he would not be able to persuade the Parole Board that he should be released without doing so.[vi] However, he was informed that the SCP was likely to be available to him until March 2025. At the time of the proceedings, there had been a 20-month delay between the expiry of the OLR punishment part and the claimant’s access to a rehabilitative course which was ‘central to persuading the Parole Board of risk reduction’.[vii] The claimant brought a claim against the Scottish Prison Service under section 6 of the HRA, alleging that the delay amounted to a breach of his right to liberty and security of person under Article 5(1) of the European Convention of Human Rights.[viii]

Decision

The Court of Session (Outer House) held that the 20-month delay amounted to a breach of the claimant’s Article 5(1) rights.[ix] Without access to the SCP and a range of other rehabilitative coursework, the petitioner’s ‘ability to demonstrate reduced risk to the Parole Board was so severely compromised that he has not been provided with a real opportunity of rehabilitation’.[x] The court granted a declarator that the Scottish Ministers were in breach of the claimant’s rights under Article 5(1).[xi] No automatic consequences flow from declarators, which merely ‘place the ball in [the defendant’s] court’.[xii]

However, the court denied the claimant damages under section 8 of the Human Rights Act 1998. Section 8(3) gives the courts a discretionary power to make awards of damages for violations of human rights. Damages are not available as of right, but only where the award is ‘necessary to afford just satisfaction’ to a claimant.[xiii] Of particular interest is the court’s assertion that damages were not necessary for just satisfaction because ‘[i]t is to be expected that the Scottish ministers will take appropriate steps as a result of the declarator’.[xiv] This statement is problematic: it is unclear what ‘appropriate steps’ are anticipated, and why they are relevant to the availability of damages.

2. What ‘appropriate steps’?

In its two-paragraph reasoning on damages,[xv] the court provides no clarification as to what ‘appropriate steps’ the Scottish ministers are expected to take, the likelihood that such steps will be taken, or the evidentiary basis on which the court based its confidence in their change of conduct.  Here are some candidates for what the ‘appropriate steps’ may refer to:

1. Providing the claimant with the SCP before March 2025.
2. The adoption of measures which aim to reduce the length of the waiting list for the SCP for the OLR population in general, e.g. addressing ‘staff shortages and the need for training of staff’.[xvi] The court refers, at various points of the judgment, to the needs of ‘other prisoners’ and the necessity of ‘proper planning’, as ‘places on courses must ultimately be available within an appropriate time frame under operation’ of the waiting list.[xvii]
3. A combination of (1) and (2).

There is no suggestion that the Scottish ministers provided an assurance that they would or were able to allow the claimant access to the SCP in the near future, much less that it would address its systemic resourcing issues. The case law on HRA remedies is littered with judicial utterances that the HRA claims aim to ‘uphold minimum human rights standards and to vindicate those rights’.[xviii] The judgment in BS appears to do the very opposite, by tying the availability of damages to an unassessed probability that the defendant would achieve an unidentified change in conduct.

 3. Why are ‘appropriate steps’ relevant at all?

On any view of what the anticipated ‘appropriate steps’ constitute, it is unclear why they should be relevant to the availability of damages. BS joins a collection of cases in which the English courts have taken no consistent approach to the question of whether a defendant’s post-breach conduct is relevant to the availability of HRA damages.

A handful of cases, in line with BS, suggest that damages may not be necessary for just satisfaction where the defendant has changed or is expected to change its conduct so as to avoid future human rights violations. In Department of Justice v JR123,[xix] the claimant alleged that he suffered a breach of his Article 8 right to respect for private and family life as the operation of the Rehabilitation of Offenders (Northern Ireland) Order 1978 prevented his conviction from ever becoming spent. While the Court of Appeal decided that the Order was compatible with Article 8,[xx] in obiter, it agreed with the High Court’s approach of denying damages on the basis that the impugned scheme was ‘in the process of reform’; there was a ‘live legislative process in train’ and it was ‘expected that [the] judgment will inform that process’.[xxi] Similarly, in Beggs v Scottish Ministers,[xxii] damages were denied to a claimant who suffered a breach of Article 8 when the Scottish Prison Service failed to deliver his privileged mail unopened.  In denying damages, the court considered that the ‘[t]he system for recognition of [privileged] mail was altered as a result of the petitioner’s complaints and actions’.

R (on the application of E) v Islington LBC[xxiii] falls on the other side of the line. In that case, the claimant, a school-age homeless child, suffered a breach of her Article 2 First Protocol right to education when Islington LBC took no adequate steps to ensure educational facilities were made available to her while transferring her into temporary accommodation out of the borough. At the time of judgment, the claimant was already reinstated in school and Islington LBC had ‘taken steps to improve its procedures for ensuring effective lines of communication between housing and education services’.[xxiv] Neither of these facts excluded the need for damages. The court asserted that bringing the violation to an end ‘[could not] retrospectively alter the fact that [the claimant] had already sustained compensable loss as a result of the breach’,[xxv] and the improvement in Islington LBC’s procedures was ‘immaterial to the issue of compensation’.[xxvi] No further explanation is provided as to why. Similarly, in R (Bernard) v Enfield LBC,[xxvii] the claimants were awarded damages for a breach of their Article 8 rights after Enfield LBC failed, for a period of 20 months, to provide them with suitable adapted accommodation. The award was made even though, at the time of the judgment, Enfield LBC had ‘discharged its duties…in full measure’ by providing the claimants with a home suitable for themselves and all their children and financial security as regards payment of rent.[xxviii] This suggests that a defendant bringing its breach to an end or improving its procedures ex post facto does not vitiate the need to compensate the claimant for the loss already suffered as a result of the breach.

The courts’ ambivalence on the relevance of post-breach conduct hints towards a more deeply rooted problem with HRA remedies. To say that the goal of HRA claims is to vindicate human rights is to give no helpful steer of the statute’s remedial goals at all. Vindication is merely an umbrella term for a collection of goals which the courts may pursue, including but not limited to (1) ‘marking’ the right, recognising the claimant’s status as a right-holder and the fact of the violation, (2) preventing the defendant from further infringing the claimant’s rights, (3) preventing the defendant from infringing the rights a group of right-holders to which the claimant belongs, and (4) reversing the effects of the defendant’s infringement.[xxix] BS, JR123, and Beggs point to a forwards-looking view of vindication.They suggest that a court’s priority when faced with a HRA claim is to put a stop to ongoing infringements and prevent the defendant from committing any further violations of human rights. [xxx] Once prospective improvements in the defendant’s conduct are secured, retrospective compensation of the claimant for the breach already committed is left by the wayside. Conversely, E and Bernard suggest a backwards-looking view of vindication; the need for retrospective compensation prevails against prospective improvements in the defendant’s conduct. A pressing danger is that the courts do not acknowledge that they are labouring under different perspectives of the HRA’s remedial goals, and consequently do not justify why different views are taken in different cases.

The decision in BS leaves much to be desired in the law of HRA remedies. One hopes that English courts reason precisely as to how, why, and whether the prospect of post-breach improvements in the defendant’s conduct bears on the question of just satisfaction. If the possibility of improvements is seen as doing some legwork in the provision of just satisfaction, claimants deserve to know how their rights are being vindicated. More broadly, one hopes that English courts openly confront the question of what it means to ‘vindicate’ a right. There should be no arbitrary line between cases which take a forward or backwards-looking view of vindication; if the division cannot be explained, it should be eliminated.

[i] [2024] CSOH 47, [2024] 5 WLUK 18.

[ii] Risk Management Authority, 'OLR' <https://www.rma.scot/olr/> accessed 13 September 2024.

[iii] Criminal Procedure (Scotland) Act 1995 s 210E, s 210F(1).

[iv] Risk Management Authority, ‘About the OLR’ <https://www.rma.scot/olr/about-the-olr//> accessed 13 September 2024.

[v] BS (n 1) [8]-[9].

[vi] ibid [11].

[vii] ibid [21].

[viii] ibid [4].

[ix] ibid [43]-[46].

[x] ibid [46].

[xi] ibid [47].

[xii] Northern Ireland Human Rights Commission's Application for Judicial Review, Re [2018] UKSC 27 [2019] 1 All ER 173 [40]

[xiii] Human Rights Act 1998, s 8(3).

[xiv] BS (n 1) [48].

[xv] ibid [48]-[49].

[xvi] ibid [42].

[xvii] ibid [37], [39]-[40], [45].

[xviii] See Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225 [138]; Commissioner of Police of the Metropolis v DSD [2018] UKSC 11, [2019] AC 196 [64]; R (AXO) v First-tier Tribunal [2024] EWCA Civ 226, [2024] 3 WLR 100 [80].

[xix] [2023] NICA 30, [2023] 5 WLUK 544.

[xx] ibid [100].

[xxi] Re JR123's Application for Judicial Review [2022] NIQB 42, [2022] 6 WLUK 236 [29].

[xxii] [2016] CSOH 80, [2016] 6 WLUK 314 [18].

[xxiii] [2017] EWHC 1440 (Admin), [2017] 6 WLUK 673.

[xxiv] ibid [150].

[xxv] ibid [151].

[xxvi] ibid [152].

[xxvii] [2002] EWHC 2282 Admin, [2002] 10 WLUK 723.

[xxviii] ibid [38].

[xxix] See, in the context of tort law, K Barker, ‘Private and Public: The Meaning of Vindication in Torts and Private Law’ in S Pitel, J Neyers and E Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart, Oxford, 2013);  N Witzleb and R Carroll, 'The Role of Vindication in Torts Damages' [2009] Tort Law Review

[xxx] The language of ‘forwards-looking’ and ‘backwards-looking’ remedies is adapted from K Roach, Remedies for Human Rights Violations (Cambridge University Press 2021)