The time has come to 'clean up' our Human Rights Act

I N FEBRUARY, The Scotsman published an article in which I highlighted some of the anomalies resulting from the ways in which the Courts and the Scottish Executive were applying the Human Rights Act and the European Convention on Human Rights.

I wrote: "In Scotland, we have the revolting spectacle of criminals being compensated to the tune of millions of taxpayers' money, because they had to use chamber pots in their cells overnight. Just think about it: when the European Convention on Human Rights was written in 1950, half the people of Europe were still using chamber pots overnight, or holes in the ground! Did anyone imagine that, 50 years later, convicted murderers and rapists would be entitled to financial compensation because they didn't have en suite facilities?"

The same scandal has now been thrown into dramatic focus by a decision of the highest court, the House of Lords, as reported in The Scotsman last Thursday. The issue before the court was: "Can a claim for damages based on an alleged breach, by the Scottish Executive, of a prisoner's right under the European Convention become time-barred by a section of the Human Rights Act

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If that sounds a bit technical, then don't read the judgements: they are fiendishly complicated. The implications, however, are clear. Prisoners in Scottish jails during the last eight years or so who had to slop out are now free to sue for damages as compensation for the indignities of having to do so. Most will get Legal Aid. The Scottish Executive believed that claims older than one year were "time-barred", so the sums involved were not unacceptably great. The Lords have decided that the Executive was wrong. The consequence is that some 70m of taxpayers' money (plus legal expenses) will have to be paid over to countless convicted criminals. So if you try to persuade your MSP that a few hundred thousand pounds spent in your district would save lives, reduce accidents or improve public services, you are likely to be met with the reply: "Sorry: all our spare funds have had to be allocated to alleviate the suffering of convicts caused by their having had to slop out."

It is more than a pity that some politicians have decided to use this ludicrous situation to make political points about the decision of the newly-elected Scottish government in 1999 not to celebrate its birth by spending millions on installing en suite facilities in every prison cell in Scotland. What a wonderful start to devolution that would have been! It is not difficult to imagine the scorn of opposition politicians if Donald Dewar's opening statement to the new parliament was that the government's first priority was to build a thousand loos for crooks.

What the newly-elected ministers actually did when they inherited the age-old problem of no en suite facilities in some prisons was to decide that the financial resources available were severely limited. So, before spending millions on ending slopping out, they decided to tackle first the increasing - and also inherited - problems of drugs, and overcrowding, in Scottish prisons. As Lord Bonomy recorded in the original slopping out case (Napier), "the increasing prison population, the huge increase in the number of prisoners with drug problems requiring special attention in prison, and unforeseen problems, such as occasional prison riots and a significant increase in suicide in the mid to late 1990s, all combined to put pressure on limited resources." The new government also had to find money to build two new prisons to accommodate the rising prison population: en suite facilities had to wait. Remember also that the Human Rights Act 1998 was not yet in force and its consequences were then barely understood.

Lord Bonomy, looking at the special facts of Napier's case - Napier was an untried prisoner with special health problems - posed the issue before him in this way: "The question... is whether Napier was subjected to conditions of detention which reached a level of severity amounting to 'serious ill-treatment' in light of a consideration of all the circumstances of his detention... including his own personal circumstances." On the basis of medical evidence that applied mostly to Napier himself, he decided that this untried prisoner had been subjected to "inhuman and degrading treatment" and that his right to a private life had been violated.

For myself, I fail to understand why these conclusions were not fully challenged on appeal. But, even if Lord Bonomy was right about Napier, it does not follow that his findings apply to all prisoners, including those convicted and sentenced. The idea that convicted murderers, rapists and drug dealers sentenced to imprisonment should enjoy the same sort of right to a "private life" as ordinary citizens is undiluted nonsense. If the Human Rights Act or Convention really create such rights, it is time they were changed. But even before legislators take steps to amend that act, or to have the statement of rights in the European Convention rewritten, the Scottish Executive should refuse to pay anything to slopping-out claimants, forcing them to go to court to have the underlying principles considered in cases not affected by the circumstances uniquely relevant to Napier. If the Executive loses in our courts, an appeal should be taken to the European Court of Human Rights to have the basic issues reconsidered.

Many judges in that court come from countries where prison conditions are so primitive that our jails look like rest and recreation camps. I know that from personal experience. I take lawyers and others from countries in Europe and beyond to visit our prisons. They marvel at the modern conditions there, contrasting the much inferior conditions in their prisons. I find it difficult to believe that a court comprising judges from such backgrounds would take a tender-hearted view when applying the "inhuman and degrading" test to the sensibilities of convicted criminals. If the alternative to paying out 70m to convicts is an appeal to Strasbourg, it surely must be worth a try.