12 October 2011

Wednesday's damp squib: pleural plaques...

If you douse the fuse, a powderkeg becomes little more than an damp squib, stubbornly resisting detonation.  My melancholy peaty divinations and worst fears about the AXA General Insurance & Ors v. The Lord Advocate & Ors case have - happily - proved comprehensively unfounded. There will be no political controversy today, ladies and gentlemen. Despite the boorach that was counsel for the Lord Advocate's oral submissions in defence of the Damages for Asbestos-Related Conditions (Scotland) Act 2009, the Scottish Government have carried the day in the UK Supreme Court, Holyrood's pleural plaque legislation surviving Lord Hope's searching judicial scrutiny. On account of my douce and parisimonious nature, I didn't hazard a shilling on the outcome, which it transpires was a cunning bit of caution.

Hope held that the Act was proportionate, and pursued the legitimate aim of "eliminating what are judged to be social injustices" [para 29].  He continued, ending with a (surprisingly forthright) endorsement of Holyrood's legislation:

33.  "Can it be said that the judgment of the Scottish Parliament that this was a matter of public interest on which it should legislate to remove what was regarded as a social injustice was without foundation or manifestly unreasonable? I do not think so. There is no doubt that the negligence of employers whose activities were concentrated in socially disadvantaged areas such as Clydebank had exposed their workforce to asbestos and all the risks associated with it for many years.  The anxiety that is generated by a diagnosis of having developed pleural plaques is well documented and it has been the practice for over 20 years for such claims to be met, albeit without admission of liability. The numbers of those involved, and the fact that many of them live in communities alongside people who are known to have developed very serious asbestos-related illnesses, contributed a situation which no responsible government could ignore." (my emphasis)

For those interested in constitutional law in general, and devolution in particular, perhaps more interesting is the Court's unflinching rejection of the idea that Holyrood's legislation could be challenged at Common Law, on grounds of unreasonableness, irrationality and arbitrariness. As Hope notes: 

42. "...the question as to whether Acts of the Scottish Parliament and measures passed under devolved powers by the legislatures in Wales and Northern Ireland are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance. It foes to the root of the relationship between democratically elected legislatures and the judiciary."

The Supreme Court (rather summarily) dismissed the possibility that Holyrood's Acts can be reviewed on these grounds, strongly affirming the powers of the Scottish Parliament.  Said Hope:

49. "The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country's best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate."

Eyebrows will likely be raised (and are already climbing foreheads), if one is stout-hearted enough to read all the way down to paragraph 51 of Lord Hope's judgment, with its not-so-oblique reference to the SNP's majority in Holyrood in the characteristic, suggestive archness of judicial prose. Having discussed the judicial review of legislation emanating from Westminster, Hope asks, rhetorically:

"Can it be said, then, that Lord Steyn's endorsement of Lord Hailsham's warning about the dominant over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the Committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise".

That'll be a spanking for the Maximum Eck, and a dressing-down for MacAskill. Otherwise, a cheery day then, for those the 2009 Act sought to aid, and a dismal one for the insurers*, who have now been pretty comprehensively trounced in the Outer and Inner Houses of the Court of Session, and now down in London. As disappointed legal persons, AXA et al might consider lodging an application with the European Court of Human Rights. Given the backlog that institution labours under (presently numbering some 150,000 applications), even if their application was declared admissible by the European Court (and only 3% of cases are), years will pass before a further judgment from Europe on this case is even possible. 

Like as not, but for those who must now take up their actions for damages under the 2009 Act, c'est finis.


*Specialist in scone monomania and occasional blogger on matters snowy and legal, loveandgarbage, has helpful emphasised the importance of paragraph 89 of the AXA judgment, from Lord Mance. To gloss the issues, with which I am no more than passingly familiar, Mance's logic suggests a way in which the insurers still may be able to escape liability for compensating pleural plaques sufferers for the negligence of their employers. It is one thing to say the 2009 Act is within Holyrood's legislative competence. As some contracts of insurance were likely made under English law rather than Scottish, there seems to be potential for insurers to get off the hook - while the employers would be left to shell out damages to pleural plaques sufferers themselves, unable to shake the pennies from their insurers.  The pertinent section of Mance's concurring judgment reads in full:

89. Whether and how far there may be such a read-across is not a matter before the Supreme Court. The only copy of an actual insurance policy before the Supreme Court is a Combined Legal Liability Insurance Policy issued by AXA Insurance UK plc to John Laing and Son Ltd of Page Street, London NW7 2ER through C E Heath & Co (London) Ltd for three years commencing 1 January 1977, covering the insured “against all sums which the insured becomes legally liable to pay as damages in respect of bodily injury (including death or disease) sustained by an Employee arising out of and in the course of his employment or engagement by the Insured in the Business and caused within the Geographical Limits during the Period of Insurance”. The Geographical Limits were worldwide.

The respondents accepted that this policy is and others are likely to be subject to English, rather than Scottish, law. A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. Suffice it to say that insurers such as AXA have ample reason for direct concern about their forthcoming exposure.


  1. Personally, I think the cross-appeal was, in the end, the more interesting, as it opens up (or imposes?) exciting new horizons of Judicial Review for the Scottish courts to explore.

    Interesting times.

  2. Lalland

    As a layman looking at this, is Hope really saying that he and his supreme court have the right to reject any legislation that the Scottish Government may produce if he and the supreme court disagree with it?

    Is he saying that having a democratic mandate from the people of Scotland counts for nothing, if that is outright majority mandate, if he and his court disagree with the legislation brought forward from that majority government?

    Have we entered the age of politically motivated judges?

  3. Dubbie.

    In answer to your questions.




    4.No. Judges are no more politically motivated than they have always been.

    You can read the judgement here


    You can appreciate Lord Hope's dulcet Scottish tones here


  4. A brief glimpse of judgement so far but other very significant point is Hope's repudiation of title and interest as the test for whether one can apply to use the supervisory jurisdiction of the Court of Session ie judicial review and the endorsement of Standing.

    This could have a major impact on judicial review process in Scotland. More on this perhaps when I read the judgement in full.

  5. DrNik,

    Absolutely - a point utterly neglected in my speedy blogging earlier, and of wider significance to boot. Readable brevity and suitable comprehensiveness are not always friends!

  6. I think sections 49-51 are much more important than you seem to think. Are we now in the realms of unelected judges deciding which acts of Parliament they can choose to ignore, and deem invalid?

    Surely that cannot be what was meant, can it?

    I'd appreciate your opinion.

  7. To a non-lawyer scanning the judgement and trying to extract some general principles from the legal technicalities, some of Lord Reed's comments (apparently backed by the other judges) seem distinctly radical. See for example paras. 145-147 on the plenary powers of the Scottish Parliament. Some commentators had been predicting that this judgement might curb the powers of the SP, reducing the status of Scottish acts almost to a kind of subordinate legislation. In fact, the judgement seems to go quite far in the opposite direction. Am I reading too much into this?

  8. I'm surprised that the noble and learned lord had quite so much to say in about and around the matter. But then these days the supreme court can recant, modify, change and reverse their own decisions being not bound by their own precedent. Mind you, they've made the point that they can and will hear cases and not just for the benefit of providing a hortatory opinion.
    A shot across the bow with targeted precision, not to be confused with either a spiked gun, with poor marksmanship, or a ranging shot, me thinks. In shallower waters, when stricken souls can wade ashore, the ship of devolved state and accompanying flotilla of legal tugboats may yet be beached by salvo and barrage.

  9. LPW

    There's that pesky politics and law raisings it's head again.

    I think if English Contract Law us invoked when all parties bar the insurers are in Scotland, that could be the next fight


  10. Looking ahead to the minimum pricing of alcohol issue, Lord Hope seems to this layman to be saying that if the SG decides it's for the good of the nation's health any such legislation is OK (I paraphrase).
    If so, the alcohol industry can save some legal costs by not taking the SG to court.

  11. Just to pick up a few bits and pieces ...

    R Louis,

    The idea that legislation can be judicially reviewed, its validity being contingent on compatibility with fundamental rights, is certainly not novel in international terms, and has been a clear jurisdiction since the Scotland Act was passed in 1998. If you have not done so already, you might like to read my comments on Joan McAlpine's commentary on the AXA litigation, and her (and I take it your) implied position on the sort of constitutionalism Scotland ought to have.

    Dennis Smith,

    Whatever else the UK Supreme Court decided, it seemed unlikely that they'd endorse the more extensive version of the judicial reviewability of Acts of the Scottish Parliament, advanced by Richard Keen QC for AXA. That they shrugged off the argument so handily and so speedily is of interest. On twitter, Alan Trench of the Devolution Matters blog expressed his surprise at the Court's full-throated support of extensive devolved competence.


    On minimum pricing, the case is rather different, and any challenge (as I understand it), is likely to involve European Union competition and single-market laws rather than European human rights law. As a result, the issues which might be in contention are quite different, and Lord Hope's comments vis-a-vis legitimate aims and proportionality here can't be read across to any future potential minimum pricing litigation.