“Legal loophole” for prisoners closed

by scotslawstudent

While reading this article I was reminded of a story I was told as an introduction to human rights. I hope this post interests readers, it’s certainly a piece that’s close to my heart – it’s Scottish Constitutional law. It’s a sordid tale of broken dreams, misplaced trust in man, drugs and the EC and I found it extremely interesting.

The Scotland Act is a fascinating piece of constitutional law and all Scots should read it — after all it’s the founding document of the fanciest named local authority of them all. The wording can be positively inspirational:

s.1(1) There shall be a Scottish Parliament
(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(6) Be willing to trade all the days, from this day to that, for one chance, just one chance, to come back here and tell our enemies that they may take our lives but they’ll never take our freedom*

*There may only be 5 subsections in section 1, I forget.

Well, 1(1) is inspiring at least — you know exactly what the drafter is looking for there. The Act draws directly on the European Convention on Human Rights-there’s no messing about with the Human Rights Act for us Scots. Despite implementing the convention in roughly the same way as the Human Rights Act (another of the new 1997 Labour government’s constitutional reforms) it is not exactly the same in its implementation — the limitation period from the Human Rights Act was missed out. Then, the House of Lords had a look over it, pointed out that actions were unlimited with the draft and it was not corrected. We can only assume that Parliament intended it that way.

Unfortunately this beautiful act of trust in the concept of Human Rights met its natural conclusion with a man named Napier. Napier v Scottish Ministers is the early, Scottish Court of Session case, not Somerville which is the meaty, precedental House of Lords decision but Napier involves drugs and I feel that gives Napier “edginess”.

Robert Napier was locked in a cell with his cellmate of the time, a recovering heroin addict and as everyone who has watched the Scottish tourist board propaganda film “Trainspotting” heroin causes you to become constipated while it is in your system. With a regular habit you can became quite consistently constipated. There was no access to heroin in this cell. The man was no longer constipated.

A very long story (and an even longer night for Napier) later, Napier, who if I recall correctly was in the jail in connection with some fairly violent crimes and should not be considered the innocent victim of this story but nevertheless should be greatly pitied, was left in cell in a Victorian prison with no toilet, a small bucket and a recovering drug addict with diarrhea.

This grim scene, combined with other elements of the Victorian prison system (Scottish jails taught the European prison inspectors something new and they have to deal with the former Soviet bloc) lead to convincing a judge that this amounted to a violation of the pursuer’s article 3 convention rights:

No one shall be subjected to torture or inhuman or degrading treatment

Napier, as a Scottish individual, had two routes to his Convention rights the Human Rights Act and the Scotland Act, both of 1998. One allowed Napier to get damages but the other allowed him to get damages and every other person who has ever had to do their jail business into a pot could equally also, claim damages. There was no limit on how far back the cases would go because of the drafting of the Scotland Act. The Scottish Executive set aside £50 million in a liability fund and even mere to get a toilet in every jail cell as soon as possible. The oversight has been corrected -on the 18th of June 2009. 11 years after the House of Lords pointed it out while the act was still under debate.

I don’t know if you can really call that a loophole at that point, it seems more Parliament’s fault.