Holyrood votes through law changes to prevent £50m ‘slopping out’ payout to prisoners

The Scottish parliament has voted through changes to the law which will save up to £50m in payouts to prisoners who are attempting to claim compensation for ‘slopping out’.

The Herald reports :

MSPs back move to avoid £50m payout to prisoners

ROBBIE DINWOODIE,

Chief Scottish Political Correspondent May 06 2009

MSPs rubber-stamped legal changes yesterday to save up to £50m in payments to prisoners claiming compensation for slopping out.

Justice Secretary Kenny MacAskill asked the Holyrood justice committee to approve fast-track legislation which could avoid future payouts.

Mr MacAskill appeared before the committee to seek approval for a one-year time limit to apply in any future cases where human rights claims are made under the Scotland Act.

Challenged on the fact that many in the legal community were uneasy about yesterday's move, Mr MacAskill said: "We have to act expeditiously. Rather than compound the agony that is felt in many communities by those receiving money yet serving sentences, we chose to move urgently. I think we deserve the right to protect the broader public interest."

More than 3700 claims have so far been settled at a cost of more than £11m, with hundreds more claims still in the pipeline.

Bill Aitken, Tory justice spokesman and convener of the committee, said: "This has been a disgraceful and embarrassing episode which has seen millions of pounds go to the most undeserving of beneficiaries, namely those who have preyed on Scotland's communities.

"The taxpayer has been ripped off but at least the matter is now being addressed and we must ensure that never again are we exposed to ridiculous claims of this type."

The new law being rushed through Holyrood and Westminster to stem the flood of claims involves an amendment to the Scotland Act.

The legal wrangle dates back to 2004 when Barlinnie prison inmate Robert Napier was awarded £2000 for the effects of slopping out and prison conditions on his health. That ruling triggered claims from hundreds of former and serving prisoners.

In 2007 the House of Lords test case ruled in a separate case involving segregation that if prisoners launched human rights actions under the Scotland Act, they were not covered by a one-year time limit which otherwise applied.

Solicitors may have known of client's false 'slopping-out' claims

It has emerged that lawyers who represented prisoner clients making claims for ‘slopping out’ may have been in on deals where prisoners were using identity fraud to falsely claim their human rights had been breached over having to use portable toilets in Scottish jails.

The Sunday Herald reports that over £2.9 million had been paid to 1373 prisoners so far before the problem was identified … (so a few audits of legal firms should be in the offing ? – Ed)

The Sunday Herald reports :

Bogus slopping-out claims may have cost six-figure sum

By Tom Gordon

Scottish Prison Service report highlights risk of identity fraud by inmates

HUNDREDS OF thousands of pounds in public money may have been paid to bogus slopping-out claimants because the prison service failed to check who was getting the compensation, the Sunday Herald can reveal.

An internal audit report by the Scottish Prison Service (SPS) admits that for years there were "no definitive formal checks to confirm the identity of each claimant", resulting in an "increased risk of identity fraud".

By the time the problem was identified last year, £2.9 million had been paid to 1373 prisoners who claimed their human rights had been breached by having to use a portable toilet in their cell. The average pay-out was around £2100.

The report also reveals the prison service "considerably underestimated" the number of claims it would face, then failed to assign enough staff to process them.

The SPS was last night unable to say if had fallen victim to fraud, but claimed it was "pretty confident" that pay-outs were valid.

Bill Aitken, the Tory justice spokesman, said it was an "extraordinary" oversight. "Hopefully no money was given to even less deserving cases than those who made legitimate claims, but with the type of person with whom they were dealing, many of whom have convictions for dishonesty, it would seem obvious to check their identity."

The audit report, titled Review of the Administration Scheme For Slopping Out Claims, was released to the Sunday Herald under freedom of information.

Based on a review of "systems, procedures and controls" between April and June last year, it found a "reasonable level of assurance" that the scheme was operating efficiently. However, this was one level below "substantial assurance", and meant avoidable "weaknesses" were present, namely a lack of identity checks, but also the "volume of claims and current staffing levels".

On the latter, it said that although claims were "subject to rigorous administration checks to confirm their legitimacy", the volume was such that a "dedicated team should have been formed to process the claims."

Resources were "inadequate given the volume of claims being handled and the levels of expenditure involved", leading to "additional pressures on staff" and "an increased risk that claims will not be processed timeously".

The claims began in 2004 when Robert Napier won a landmark court case after being forced to slop out at Barlinnie. The practice was deemed a breach of his human rights. His £2450 compensation award led to a flood of similar cases.

In Scotland claims could be backdated to 2001, raising the prospect of taxpayers having to pay £67m in compensation.

However, earlier this month it was announced that legislation would be hurried through Westminster to amend the Scotland Act and create a one-year time-bar by summer, limiting the claims bill to around £17m.

The SPS said that since the audit a dedicated team had been set up to handle claims, and had now gathered more information on claimants. However, it had not checked the validity of past claims, and could not guarantee that it had not been a victim of fraud.

A spokesman said: "No evidence exists to suggest that any fraudulent claim has been paid.

"Nevertheless, we are confident that we now have processes in place to mitigate the risk."

McBride calls slopping out deal ‘legally dubious’ for prisoner’s human rights

Despite a deal being announced between Edinburgh & Westminster to close the time bar on prisoner’s ‘slopping out’ claims to one year, members of the legal profession are warning the deal could breach prisoner’s human rights, and may end up costing a few million pounds more to put right … (and so say a few lawyers miffed at not getting their hands on more taxpayers money – Ed)

The Scotsman reports :

Slopping-out: Bid to stop payouts 'will cost taxpayer even more'

Published Date: 20 March 2009
By David Maddox
Scottish Political Correspondent

ONE of Scotland's top QCs has warned that moves to prevent prisoners suing for having their human rights breached could end up costing taxpayers millions more.

The Scottish and UK governments yesterday announced they had reached an agreement to close a loophole in the Scotland Act to stop prisoners from claiming compensation for slopping out.

But Paul McBride, the vice-chairman of the Faculty of Advocates and a member of the Legal Aid Board, said the proposal to put in a one-year bar was "legally dubious".

The one-year bar, which exists south of the Border through the Human Rights Act, stops claims being made more than 12 months after the alleged human rights breach.

Scotland does not have this protection because it was left out of the Scotland Act 1998.

The proposal agreed by the administrations in Holyrood and Westminster would allow MSPs to amend the Scotland Act.

But Mr McBride said: "I think that is legally very dubious. You cannot just turn off somebody's human rights.

"We are talking here about four people being forced to share a cell designed for one and having no privacy to defecate.

"In my view, there will be challenges to this change, and this will cost the public purse even more in legal fees and legal aid.

They could have put in gold-plated toilets already for the money they have paid out."

A spokesman for the Scottish Government said there would be no proposed changes to the law unless the administration was confident about the legality.

Mr McBride also joined criticism of Alex Salmond after he stated during First Minister's Questions that his government would try to reclaim board and lodgings from compensated prisoners. It costs an estimated £40,000 a year to keep each prisoner locked up and compensation on slopping out has averaged £2,000.

"Again this is legally highly dubious," said Mr McBride. "Even if the Scottish Government succeeded in this claim, the tiny amount recovered would be dwarfed by the cost to the taxpayer for legal aid and the Scottish Government's own costs."

Another leading Scottish advocate, John Scott, chairman of the Howard League for Penal Reform in Scotland, said Mr Salmond "was failing to show sufficient leadership" on the issue and should explain why a prisoner would be singled out for board and lodgings because he had received compensation.

He said claims for board and lodgings only successfully applied to people who had been victims of miscarriages of justice, who had it deducted from their compensation.

He also raised concerns about the one-year bar, saying: "If it succeeds, it could block cases (that] are more deserving."

Lawyers lose out on rich pickings as slopping out deal ends payouts loophole to prisoners

A deal has been reached between the Scottish Government and Westminster to end the loophole which allowed lawyers to go round Scottish prisons looking for clients who felt their human rights had been breached because they did not have access to toilet facilities.

Well, thats a few million saved for the taxpayer, or perhaps the Scottish Government will just find another way to waste it somehow …

The Herald reports (as tears roll down the eyes of certain lawyers – Ed)

Deal struck to close slopping-out claims loophole

New laws are to be rushed through Westminster to block a flood of human rights cases by Scots prisoners over slopping-out, it was announced today.

Thousands of inmates have claimed their rights have been breached because they were denied toilet facilities in jail.

More than £67 million has been set aside for payouts after the House of Lords ruled that a 12-month time-bar on backdated claims did not apply in Scotland.

Now moves to close the loophole have been agreed after talks between officials in London and Edinburgh.

Scots Secretary Jim Murphy said: "I met with the First Minister last week and he asked for help to fix this.

"We will rush new laws through the Commons and the Lords to give new temporary powers to the Scottish Parliament to close this loophole.

"I would expect every party to work together to make sure this happens."

The deal follows talks between the Ministry of Justice, the Scotland Office, and the Scottish Government, and follows a public appeal to Westminster last week by the justice minister, Kenny MacAskill.

He asked for cooperation in passing urgent legislation to solve a problem posed by a House of Lords ruling in 2007.

This meant prisoners who sued the Scottish Government under the Scotland Act for human rights breaches did not have to do so within the 12 month time-limit that applies elsewhere in the UK.

The ruling opened the door to a flood of cases, mainly from prisoners who claimed slopping out when they were doubled in up cells was a human rights breach.

Mr MacAskill told Parliament last week that £67 million has to be set aside to meet claims, of which £11.2 million has already been paid out, and new claims were coming in at the rate of 200 a month.

Changing the law could save about £50 million which could be put to better use, he said.

A Scotland Office spokesman said: "The UK Government will bring forward an order almost immediately to allow the Scottish Parliament to make a change in the law."

That change would introduce a 12 month time limit for human rights actions launched against Scottish ministers.

Solicitor Tony Kelly, who was involved in many of the cases, accused the Scottish Government of being "sore losers."

The provisions in the Scotland Act enabling the human rights cases to be launched had not been placed there by accident, he told BBC Radio Scotland's Good Morning Scotland.

And having lost the House of Lords case ministers were now complaining, said Mr Kelly.

"Basically they are sore losers, trying to get a change" he said.

"That would not happen in any other course of litigation, where a loser can run and seek to reverse the outcome."

Mr Kelly also argued that the change being sought would affect not just claims by prisoners but by anyone claiming human rights breaches.

"That's important, because it loosens the respect for convention rights that was tied in to the Scotland Act," he said.

Law Society’s Michael Clancy wants to help MacAskill slop out the slopping out claims

The recent publicity on how much has been spent by the Scottish Government on meeting slopping out claims put in by lawyers on behalf of their jailed clients, has prompted the Law Society to offer its hand in slopping out the payments to its own members …

Law Society release :

THE LAW SOCIETY OF SCOTLAND COMMENTS ON LEGISLATION MIS-MATCH IN SLOPPING OUT CASES

Michael Clancy, Director of Law Reform, said: “There is an issue about the application of the Human Rights Act 1998 and the application of the European Convention on Human Rights under the Scotland Act 1998 which produces a mis-match in the periods when such applications can be raised (one year in England and Wales and 8 years in Scotland).

“The Law Society of Scotland would be pleased to assist the UK Government and Scottish Government in resolving any issues which arise from these different statutory provisions. The Society takes very seriously its role in contributing to the clarity and consistency of the law in general.

“Under the Standards for Scottish Solicitors, a solicitor must act in his or her client’s best interest. In doing so, solicitors are bound to interpret and apply the law to their client’s circumstances but they are not responsible for the law which they apply. That is a matter for Government.”

Slopping out payments - Lawyers land SNP Executive with multi million pound bill

Never one to shy away from a quick legal aid fee, the legal profession has landed the Scottish Executive with a £76million pound plus bill for payments to prisoners over slopping out.

The Herald reports :

Jails ruling opens way for human rights cases

LUCY ADAMS, Chief Reporter

Taxpayers are facing a bill running into hundreds of millions of pounds after a landmark ruling by Law Lords yesterday against Scottish ministers.

Their verdict on the impact of the European Convention on Human Rights (ECHR) will sanction compensation claims by thousands of prisoners, estimated to cost at least £76m.

But because the Law Lords, the highest appeal court in the UK, decided that the usual time limit of one year on human rights cases should not apply, experts believe legal actions against a range of other public bodies could follow.

Yesterday's ruling focused on four men kept in segregation in prison, but was seen as an important test case for inmates who have suffered inhumane or degrading conditions since 1999, when the ECHR was introduced under the Scotland Act.

The ECHR has a statutory one-year limit, but there is no time-bar for cases brought under the Scotland Act, and the Law Lords, in a 3-2 ruling, said the latter legislation should prevail. It will put Scotland into what appears to be a unique position in human rights law.

Claims are expected from thousands of prisoners who have been forced to slop-out since 1999 and yesterday's ruling will also extend the length of time they can claim to have suffered. Many cases had been frozen, awaiting yesterday's outcome.

Tony Kelly, solicitor for the four men, said: "I am delighted that the Law Lords, after careful and detailed scrutiny of the petitioners' cases, have decided that they were correct in basing their challenges under the Scotland Act.

"This is a definitive ruling about the correct procedural route to be taken when the Scottish ministers are to be sued. This is not simply a legal nicety.

"The Law Lords have held that Scottish citizens do not need to look beyond the Scotland Act when seeking to ensure that their government acts within its powers and respects (ECHR) rights. This gives litigants in Scotland the full measure of protection in court actions, free from any technical restraints."

The four at the centre of the ruling are Andrew Somerville and Ricardo Blanco, serving life for murder; armed robber Sammy Ralston; and David Henderson, a violent offender. They claimed their human rights were abused when they were forced to live in segregated conditions, without recourse to representation.

The appeal court in Edinburgh ruled last year that the cases were time-barred. The Law Lords have now overturned that decision, meaning their case can go ahead.

The ruling follows the case of Robert Napier, a remand prisoner in Barlinnie, in Glasgow, who claimed he had suffered degrading "treatment" in breach of article 3 of the ECHR, for having to slop-out.

Awarding Napier £2450, Lord Bonomy said it was clear ministers could have fixed the problem of slopping-out earlier, but chose not to do so. The figure was based on two months of slopping-out. The amount claimed by those who have been slopping-out for years will be considerably higher.

Lord Bonomy highlighted the decision by Jim Wallace, the former justice minister, to use £13m to tackle drug trafficking and domestic abuse instead of slopping-out, which effectively ended in England and Wales in 1996.

The Scottish Prison Service (SPS) is now spending £1.5m a week on modernising prisons. Accounts for this year show a contingency sum of £76m, allowing for the possibility of losing the case yesterday.

A spokesman said: "We have received the judgment and are considering the wider implications. We have already made provision within the SPS accounts for claims under ECHR legislation. The Scottish Government has made considerable financial commitments to providing a prison estate fit for purpose for the 21st century. This will eliminate the conditions which have given rise to many of these claims."