24 September 2011

Of Joan McAlpine & "distinctively English" constitutional principles...

Writing in the Scotsman this week, Joan McAlpine, journalist-turned-blogger-turned-South-Scotland-SNP-MSP, composed a jeremiad about a legal story which will, I expect, shortly be gracing most papers in the country. Her subject? The case of AXA General Insurance & Ors v. The Lord Advocate & Ors, presently up before the UK Supreme Court. The Court's website provides this brief, helpful outline of the key facts in contention in the litigation. 

"In June 2009 the Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force, having been enacted by the Scottish Parliament. It provides that asbestos-related pleural plaques and certain other asbestos-related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents a greatly increased risk of contracting such diseases. The Appellants are insurance companies whose business includes employers’ liability insurance policies. They brought a petition for judicial review seeking an order that the 2009 Act is unlawful. The petition was dismissed by the Outer House of the Court of Session and, on appeal, by the Inner House. The 1st Respondent represents the Scottish Ministers, the 2nd Respondent represents the United Kingdom Government and the 3rd to 10th Respondents are individuals who have been diagnosed with pleural plaques."

As I have discussed several times before with respect to a number of political issues, the Scottish Parliament's powers are limited by the Scotland Act 1998, which devolves all issues which are not reserved, and limits the Parliament to Act consonantly with European Union law and the human rights law emanating from the European Court of Human Rights' analysis of the European Convention.  Any law passed by Holyrood which is incompatible with either of these two constricting bodies of norms, or which relates to reserved matters, can be flattened by Scots courts, declared ultra vires and thus no law at all.  That is precisely what the litigating group of insurers are up to. As the UK Court's case summary suggests, the insurers' case was comprehensively rejected by the Scots Courts, by Lord Emslie at first instance at the very beginning of 2010, and by the Inner House of the Court of Session, in a judgment from the soon-to-be-retiring Lord President Hamilton, given in April of this year. Unusually, suggestive of the legal interest of the AXA case, a panel of seven Supreme Court Justices was convened to hear the case in London, with Court of Session judge Lord Reed substituting in for the sickly Lord Rodger of Earlsferry, the second Scots Justice on the Court, who has since passed away.  Writes Joan...

"... there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.  This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it."

The sham of the current constitutional arrangements? Mibbes aye and mibbes naw. One of the reasons Joan's argument is interesting is that it pitches traditionally-held SNP views about a post-independence Scottish Parliament into the ditch. In the party's most recent draft constitution for a free Scotland, last updated in 2002, the SNP promoted a conception of the legislative function that makes a number of breaks with the Westminster model (but significantly, shares many of the features of Holyrood at present). Article VI of the Nationalist constitution, speaking to fundamental rights and freedoms, very extensively borrows from the European Convention on Human Rights, including the Protocol 1 Article 1 rights to property, being relied on by the insurers in the pleural plaques litigation. The document also makes clear that Scottish judges will be empowered to make a determination about the constitutionality of any Act of the Scottish Parliament. Critically, in clear echo of Holyrood's current legal situation under devolution, the SNP constitution makes clear that Acts which do not observe fundamental rights will be legally void. Scottish Courts will be able to strike laws down, whatever political will generated their provisions...

Article VI, s1(a) "...no law may be passed which abrogates or derogates from the guaranteed rights and liberties".

It is familiar stuff, ritually reasserted in four swearing-in ceremonies, that the SNP believe the people of Scotland to be sovereign. It is quite another thing for Joan to attempt to borrow that sovereignty for the Scottish Parliament, particularly since the SNP are not (and to my mind, have never been) supportive of a sovereign Scottish legislature after independence, aping the English constitutional model.  Indeed, many nationalists are so hostile to the idea of parliamentary sovereignty, that they seek out ways in which Westminster may be misguided in its apprehension and assertion of legal supremacy. Lord President Cooper, making mischief in the celebrated case of MacCormick v. Lord Advocate on the Queen's right to style herself Lizzie Twa in Scotland, furnished them with the striking observation that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law".

It is easy, given the legal structures of devolution, to fling around generalised accusations that any limits on the parliament's institutional powers are constitutional shams and Westminster villainies. The irony of Joan's position is that the AXA challenge to Holyrood's pleural plaques litigation would almost certainly have happened, had the same Act being passed in an independent Scotland, shaped by the SNP constitution. For those with a keen eye and appreciation for political paradoxes, the questions before McAlpine are obvious. Does she want to transform Holyrood into a sovereign successor institution which draws on "distinctively English" constitutional principles with "no counterpart in Scottish constitutional law" - or does she wish to follow the SNP model of legislative power in an independent Scotland being limited by the judicial interpretation of fundamental rights? The two propositions are mutually exclusive.

I have rather more sympathy with the vexation Margo MacDonald will be feeling, to find that an issue she wished to pursue through legislation - outlawing exorbitant rates of interest being charged - is reserved to Westminster under the Scotland Act 1998, and thus, outside Holyrood's legislative competence. Both cases illustrate a point I've been banging on about for a good while - legislative competence issues aren't obscure, technical legal details we can afford politically to ignore, whether as political observers, commentators or members of parliament. Political competence, and a sense of what is possible and impossible, must needs be informed by legal competence.  Infelicitously, Joan also suggests in her Scotsman article that...

"That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds - the case hinges on their property rights - though stranger things have happened."

This isn't the case. In point of fact, the hearing before the UK Supreme Court was held in the middle of June, and it is the Court's final judgment in the case that we are now anticipating.  As to the character of that hearing, I can't do better than quote my own more or less contemporaneous observations, having watched the defence of Holyrood's legislative competence to pass its pleural plaques legislation. My thoughts very likely shan't bring an optimistic smile to Joan's phizog, although she may take some succor from Aidan O'Neill QC's decidedly more robust, eloquent and à point contribution in the law's justification, towards the end of the hearing...

"In the UK Supreme Court this week, the Justices heard the appeal of insurers against Holyrood's pleural plaques legislation. As those watching proceedings on the t'internet would have noticed, counsel for the Lord Advocate, Alan Dewar QC, put in an exceedingly ponderous and long-winded performance - and if Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act is held to be intra vires by the UK Supreme Court, despite its retrospective application, it will be despite the potency of Dewar's interminable oral advocacy, rather than because of it."

We'll see what the UK Supreme Court decide, though given their mid-hearing rhubarbs and harrumphs, I wouldn't be surprised if the Justices object to the 2009 Act's retrospection. For what it is worth, however, I think it'd be disgusting if the insurers prevail and the pleural plaques Act is struck down. Having been extensively involved in the parliamentary discussion on the proposals, going to law in this manner is clearly venal, clearly self-serving. As a final aside, the fate of the 2009 Act ought to be taken as a salutary lesson for those minded to pooh-pooh my well-covered concerns about a legal challenge to Holyrood's independence referendum Bill. The Damages Act came into force on 17 June 2009. Lord Emslie entertained 22-day long hearings on the insurers' challenge to the legislation in the October of 2009, giving his adverse judgment in January 2010. Lords Hamilton, Eassie and Hardie didn't hand down their appeal judgment on the matter for a year and three months later. In a speedier movement, the UK Supreme Court won't be in a position to announce their final disposition of the case until after the start of their Judicial Year on the 3rd of October at the very earliest. If the commentators are correct, and canny Eck is biding his time to launch the independence referendum at the most fecund moment for nationalist feeling, all of that political calculation risks coming up nought before the law's delays.


  1. Lalland's - forget the niceties of law many Scots see this as purely political, an attempt by Westminster to 'put Scotland in its place' and are more in accord with Joan than your good self.

    The reality is that Scotland has never been in the thrall of Westminster. The Scottish people's sovereignty was held in trust by the Scottish Grand Committee and never made subservient to the Westminster oligarchy - that is Lord Coopers point in his 1953 judgement.

    For you to be correct requires that Westminster repeals the Scottish 1698 'Claim of Right' and removes the independence of Scots Law from the 1707 Union Treaty.

    As the English majority is so huge, Westminster could pass legislation to do both but it is only in this way that the Scottish people can have their sovereignty and right to our independent legal system removed and made subservient to Westminster. To do this scores a massive own goal and only makes Wee Eck's job even easier.

    It is up to the Scottish people to say 'what is' and 'where lies their sovereignty' and that process is reserved to the Scottish people by the 1689 Claim of Right.

    The latent anger in Westminster's presumption over this and other issues is reaching a critical point in Scotland and if the Supreme Court does not take this into account the Union will be gone sooner than 2014, leaving England and its debt finances in disarray.

    No, Joan is right to emphasise the political nature of this judgement no matter what is decided. Simply because it is about the Scottish people's right to our independent system of law and our expression of sovereignty.

    The Supreme Court can go hang itself and the Union for all I care.

  2. Let's not lose sight of the fact that McAlpine's primary concern here is the status of Holyrood in the overall constitutional framework of the UK. The case itself is little more than a convenient means through which she can voice her opinion.

    As for the idea that the UK courts can't overrule Parliament, that's an outdated notion. Acts of the UK parliament have to comply with EU law, if they don't the UK courts must ignore UK statute law and apply EU law instead.

  3. You have quite a static view of things, which probably comes from being a lawyer not a politician.

    Supposing the worst happens as you see it and some unionist does go to court to try and stop the referendum. And supposing they even win. What would the consequences of that be?
    It would mean the referendum campaign would seamlessly become the Scottish Parliament election campaign - and the single issue dominating it would be the right of the Scottish people to decide their own future. Plus - and this could be significant - it would mean a much longer unregulated campaign period. The referendum period would be set in statute, with spending limits set and so on. If polling day came and went with no referendum we would then be into an unregulated period but I suggest the campaign would be more intensive than ever and party members and supporters would dig deep - let's face it we all gave money to HQ for that legal challenge to the BBC during Westminster even though we thought it would probably go nowhere.

    I mean seriusly, can you imagine the momentum that would build up behind a campaign simply to allow people to vote on their own country's future? It would be tremendous. And you have to consider that if that kind of momentum built up it would make a yes outcome all the more likely.

    And where would it leave the unionist side? Because it would be pretty difficult for them to distance themselves from a challenge to, basically, the Scottish peoples right to self-determination if the challenge was mounted by a unionist.

    So even if someone did mount a legal challenge it would not be the end of the world, far from it.

    Lest anybody think I am starting a new conspiracy theory in which the SNP secretly hopes the referendum is ruled unlawful so that they can sweep all before them on a tide of popular outrage and demand that Westminster gives them the undisputed power to hold a referendum on independence - I am not. I think they would far and away prefer to hold the referendum they plan to hold.

    But they'll play the cards they are dealt because that's what politics is like - you don't always get to deal the cards, there are always circumstances beyond your control. It's how you adapt to circumstances that counts.

  4. Gosh.

    I wonder if the turnout would be more than 50%?

  5. As in the previous thread Peter Thomson articulates my thoughts - indeed adds weight to them - much better than I could.

    As Peter says LPW, I'm not convinced that the paradox of which you highlight was Joan's intention. I'm not aware of her being a Constitutional expert, but aye I suppose she or more pointedly her advisors should really have delved much deeper into the constitutional intricacies. They could do a lot worse that read this excellent educational site. However a political point is at play here, and too much detail might dilute the thrust of the piece.

    As I tried to get across in the previous thread (and which Peter surely did) is that the winds of change have and are blowing across this great nation. How the Courts reflect this is upto them, but reflect they must!

    As the grandson of a miner who suffered and died from a lung condition. My family recieved a minor payment, so small that once split between my Ma and her siblings it wasn't worth falling out over. Thing is there are hundreds of thousands of family members like me who would automatically sympathise with the families whom axa & others is trying to shaft.

    At the moment we are subject to a Constitutional law that is not our own. Most people won't delve deep enough to consider much more than the fact that a law made in holyrood may potentially be over-ruled by a Court that was never intended to do any such thing. Thus while you correctly highlight a paradox, it is really only the likes of us who will notice.

  6. It seems to me that there is an opportunity to re-balance the law in favour of victims rather than corporate interests.

    Whether that is enough, of itself, to swing us to independence, the straw that broke tha camels back - probably not - but it is certainly another straw on the camels back, I'd have thought.

    The list of grievances, real or imagined, is becoming politically compelling.