9 March 2010

English Platonists & Scots Aristotelians

Although I’m sufficiently late with this piece of information, such that it probably doesn’t count as news, for the completeness of the record I thought I’d mention it. As regular readers may know (or at least, those of you who don’t feel the scales forming on your eyes as I indulge in the occasional legal digression...), I’ve been following the Scottish pleural plaques litigation, in which big insurers are attempting to circumvent Holyrood’s legislative prerogatives and use a combination of the Scotland and Human Rights Acts 1998 to wriggle out of paying compensation. As many of you will know, pleural plaques form as a consequence of exposure to asbestos but only very rarely demonstrate physical symptoms. This became a political issue after the judicial committee of the House of Lords held in the Johnston case that pleural plaques did not represent a recoverable harm, contrary to the prevailing pay-out practices among insurers at the time. While Holyrood determined to enact legislation to reverse the judgement (which is now the subject of the contested case), the position and England and Wales remained uncertain. Would the government take action or not? On the 25th of February last, those who take an interest received their answer. Jack Straw of the UK Ministry of Justice confirmed that the Westminster government would be introducing no English and Welsh equivalent to the Scottish Act.

“On the basis of medical evidence received during the course of this review, including authoritative reports from the Chief Medical Officer and the Industrial Injuries Advisory Council, we are unable to conclude that the Law Lords’ decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up. While the current medical evidence is clear that pleural plaques are a marker of exposure to asbestos, and that exposure to asbestos significantly increases the risk of asbestos-related disease, any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person’s exposure to asbestos rather than because of the plaques themselves. However, if new medical or other significant evidence were to emerge, the government would obviously reassess the situation.”

Quite what affect this judgement might have on the arguments adduced in the next stage of Axa General Insurance Ltd Petitioners judicial review is open to speculation. I tip my trilby to Scots Law News blog for this piece of intelligence.

Secondly, to bundle my legal remarks, the United Kingdom Supreme Court has recently been up to mischief on another Scottish case concerning Holyrood’s limited legislative competence and the discernible ambit of the same. In Martin & Miller v. Her Majesty’s Advocate, Lords Hope, Walker and Brown divided with their brethren, Lords Rodger and Kerr on the small matter of traffic offences. Road Traffic Offenders Act 1988 initially provided that the crime could be prosecuted summarily before a sheriff, or on indictment, to be tried by a jury. The maximum penalties in the 1988 Act were six months on summary conviction, twelve months on indictment. Enter section 45 of the Criminal Proceedings etc (Reform) Scotland Act 2007. Under “Other Statutory Offences”, the 2007 Act provided that sheriffs hearing cases under all relevant statutes – i.e. those triable summarily – would have their sentencing powers increased in line with the earlier common law provisions, from not more than three months, to a maximum of twelve months imprisonment. So much, so simple. This becomes a contested legal case because various people prosecuted under the 1988 Act were sentenced to periods of imprisonment greater than six months by their sheriffs, as sanctioned by the legislation of 2007. Here is where it gets tricky. In Schedule 5 of the Scotland Act 1998, which sets out powers reserved to Westminster, appears E1(d): “the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988”. Thus, argued those who got the jail for a period of more than six months – because the 1988 Act is a reserved matter, Holyrood was going beyond it legislative competence in purporting to change the maximum summary sentencing power of sheriffs who convict accused persons under the Road Traffic Act 1988. The majority, with former Lord President of the Court of Session Lord Hope at the forefront, ultimately determined that Holyrood had behaved itself and not quixotically ignored the constraints of the Scotland Act. The minority were robust, critical and lead by the other Scottish judge on the Court, Lord Rodgers.

Advocate Aidan O’Neill QC (whose already been mentioned a couple of times on this blog) uses the case to leap into the philosophy of the thing, reflecting on how Platonic and Aristotelian modes of thought might inform out understanding of judicial philosophies. Although an appeal to ideal-types, O’Neill broadly identifies Scots Law with a more rule-predicated, Aristotle-echoing ruling spirit, while English judicial wisdom, he argues, engages with Plato’s considerations of a wise man, a Philosopher-Judge in this case, applying his wisdom to a concrete case, rather than rule-roteing. Quite how satisfying this typology is in the context of division between the two Scottish judges – I leave to your learned discretion. For those of you interested in such things, the piece can be read here.

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