Wednesday is almost certainly going to be a wildly controversial day in Scottish politics, although as Ian Smart remarks, you'll find nary a whisper of it in the Sunday papers. Today, the UK Supreme Court confirms that it will hand down its judgment in the case of AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) this coming Wednesday. If you have not been following the litigation, in brief, the insurers are challenging the legislative competence of Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act 2009 under the Scotland Act 1998. The 2009 Act provided that:
1(1) Asbestos-related pleural plaques are a personal injury which is not negligible.(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
Section four of the Act provides that these operative sections should be treated "for all purposes as having always had effect" (s4(2)). Represented by the Dean of the Faculty of Advocates, Richard Keen QC, the insurers have impugned the Act on a number of fronts. Despite losing their action in the Court of Session Outer and Inner Houses, the scuttlebutt suggests that the insurers feel confident that they will carry the UK Supreme Court with them, where they failed to convinced Lord Emslie and Lord President Hamilton. Having seen the advocacy of the representative of the Lord Advocate before the UK Court, I have already suggested that it will be something of a miracle if the Act survives the Supreme Court's scrutiny unscathed, and frankly, at this stage I'd be willing to wager ready money that the Court will at the very least strike down the Act's purported retrospective application.
Given the political stooshie which blew up after the Cadder and Fraser judgments were handed down, this judgment has much, much more explosive political potential. Rather than touching on an aspect of criminal procedure, or the fairness of the case prosecuted against one man, if adverse, the AXA judgment will amount to a judicial victory for vast insurers, on human rights grounds, made possible only by their significant wealth, contrary to a democratically-reached deliberation in which the insurers participated and were disappointed, overturning the reasoning of two Scottish Courts, which will deprive a number of weary, dogged and infinitely more sympathetic litigants with scarred lungs of any recourse, their disappointments undoubtedly sharpened by their apparent victory in Holyrood in 2009.
If that isn't a legal-political powderkeg in the present environment in Scottish politics, I don't know what is. We await the reasoning of Lords Hope, Brown, Mance, Kerr, Clarke, Dyson and Reed. On Wednesday.