A blog series By Barbara Bolton, Legal Director and Partner
Going to Court
The Consultation does not have a lot to say on judicial remedies, focusing instead on administrative routes to remedy. While it is very important that people have free, highly accessible routes to securing an effective remedy, it is equally as important that they are able to pursue a judicial remedy.
With significant improvement in administrative routes to remedy, the need to pursue a remedy in court would reduce in many cases. However, we cannot assume that we will have accessible, affordable, timely and effective administrative remedies. Significant reform is required to achieve that. Even then, there will always be a need for judicial remedies, and so a requirement that those judicial remedies are also accessible, affordable, timely and effective.
There is no discussion of time limits for court claims under the new SHRB. Claims under the Human Rights Act (HRA) must be brought within a year, and this Bill should at least mirror that. However, we should not assume that the HRA position is the right one. In the UNCRC Bill we saw the Scottish Parliament mirror the one-year time limit in the HRA, but also agree that any period prior to a person turning 18 should be disregarded, and so young people have a year from the date on which they turn 18 to bring a claim.  It could also adopt a more flexible approach for claims under this Bill. The one year limit in the HRA is very short compared to Scotland’s general approach to civil claims. People have three years to raise personal injury claims in court, and five years to raise breach of contract claims. One year is a very short period of time, particularly where breaches of rights may have placed someone in a highly precarious situation, rendering them unable to engage with a judicial process, and/or have caused trauma. If three years has long been considered appropriate in Scotland for people bringing personal injury claims, should those who have experienced breaches of their fundamental rights not be giving at least that same period of time before being barred from pursuing a judicial remedy?
The one-year time limit in the HRA is softened to a degree by provision for courts to exercise their discretion and allow a claim later if it considers it equitable to do so.
This was also mirrored in the UNCRC Bill.  However, that leaves victims of human rights breaches with little certainty, as it depends on the discretion of the court. They face the burden of meeting yet another strict legal test, having to present evidence justifying the delay and funding that procedure, before it is even confirmed that they can bring forward their claim. The discretionary possibility that claims may be allowed after one year does not adequately address the harshness of the one year limitation. A discretion does not confer a right. Given that the state is generally the defender in human rights claims, and will generally have retained relevant records for at least three years, it is hard to see significant prejudice to the state of having to defend human rights claims related to events that occurred within the previous three years.
Most HRA claims are raised through Judicial Review (JR). The one year limit in the HRA and UNCRC Bill are qualified, in that any stricter time limit will apply. Since Scotland followed the approach taken in England & Wales, introducing a three month time limit for seeking permission to raise a Judicial Review, HRA claims through JR must be raised within three months of the breach. 
Three months is an exceptionally short period for anyone to raise a court action, but it is particularly burdensome for anyone who: does not already know they may have a legal remedy; does not already have a solicitor; requires legal aid; is experiencing the adverse impact of the breach of their rights. We know from our own casework that three months is an unreasonable deadline, with many clients having exceeded that by the time they find their way to us. Real consideration should be given to whether the three-month time limit should remain. Such a restrictive limitation on accessing justice should have a very strong justification. It is not clear that adequate consideration was given to this at the time of the introduction of these new rules. Prior to the introduction of the three month limit Scotland had no specific limit on the time for bringing a JR. A claim could be brought at any time subject to the defender’s right to challenge the claim as too late, based on rules related to the fairness of the process. If events had occurred decades prior, witnesses were deceased and documents destroyed, there may have been an argument that it would have been unfair to put the claims to the defender. To go from that to a three month time limit was a dramatic change.
Strict statutory interpretation compounds the unfairness – a claim is time-barred three months after the first day of the breach, even if the breach of human rights is continuing. Can it be right that someone denied their liberty in breach of their rights loses the possibility of accessing justice through judicial review because the breach has been occurring for more than three months? If this is not urgently reformed, someone denied adequate housing, food or the right to a healthy environment will similarly be barred from pursuing a remedy through judicial review even although their rights continue to be breached. The discretionary power of judges to allow claims ‘late’ if they consider it equitable to do so is inadequate, as a discretionary power does not confer a right.
Similarly, the three month rule has been interpreted to mean the three months runs from the date of the decision, even if you are unaware of that decision. If a decision is made and recorded in a letter, but that letter is not sent or does not reach you for more than three months, you have already lost the possibility of JR. None of this sits well with long established principles of Scots law related to time bar, but the introduction of that legislative provision along with strict statutory interpretation has meant this is where things currently stand.
* Please note that this is a work in progress and more content will be added on a rolling basis.
Access to Justice and the Right to an Effective Remedy [Blog 1 – part 1]
Access to Justice and the Right to an Effective Remedy [Blog 1 – part 2]
Rights for particular groups: going as far as devolution allows [Blog 2 – part 1]