10 October 2011

Wednesday's powderkeg: pleural plaques...

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.


  1. Back in the summer I took the view that the First Minister's criticism of the UKSC, and in particular Lord Hope, was something of a dress-rehearsal for this decision.

    Salmond's language at the time didn't seem to fit the facts of the Fraser and Cadder cases:

    "...politics and the law intertwine, and the political consequences of Lord Hope's judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don't go chapping at Lord Hope's door, they ask their parliament what they are doing about it."

    I think that the Government wildly overplayed their hand as the story gathered momentum - especially as the FM attacked Tony Kelly - but that was because they always had one eye on setting-up the political landscape for this week's decision.

    It could still pay-off for them politically - this is an emotive, touch-stone issue in post-industrial, working class communities and Salmond is perfectly positioned to be seen as defending their interests.

  2. LPW

    Leaving to one side the emotive subject matter, and looking at the case as a lawyer should, would the supreme court be correct in upholding the appeal?

  3. The "law" will truly be seen for what it is, an ass, if the ESC goes any further with this or any other Scottish based case given their "authority-minus" situation thanks to extant ancient Scots Acts.

  4. Article 19 Treaty of Union:

    "And that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; And that the said Courts, or any other of the like nature after the Union, shall have no power to Cognosce, Review or Alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same;"

    So basically Lalland's you think their Lordships in the Supreme Court of Westminster Hall are going to breach Article 19 of the Treaty of Union with impunity?

    In Scots Law the Scottish Parliament is where the sovereign Scots exercise their power. The Sewell Convention admits this to be true, bar actually saying it.

    Basically if their Lordships find for the insurers they are usurping the expressed wishes of the sovereign people of Scotland, given the Act in question has cross party support in Holyrood.

    What we are talking about is the defining moment for the Union and its collapse within the next few months if the judges find for the Insurers.

    I live in Scotland and can assure that if the insurers get away with it the anger of the Scots towards Westminster's bodge of a creation and Westminster will rise to higher levels than seen since 1707.

  5. Anyone ever imagine they had a design for the thistle sitting at the top of the supreme court logo? No, neither do I.

  6. Peter Thomson said...

    'What we are talking about is the defining moment for the Union and its collapse within the next few months if the judges find for the Insurers.'

    Meanwhile, back on planet earth.....

  7. Mick,

    I wonder if you are not imputing too much cunning to the First Minister. Unless you suspect that by "the vilest people on the planet", Salmond meant big insurers! Certainly, if Wednesday's judgment goes the way I expect, it will contribute yet another tricky story for Unionists, conscious of the coming referendum, amply exploitable by Nationalists. Given the daftly cudgelling tone of past interventions, Salmond and MacAskill will have to be careful about how they express themselves.

    Anonymous 10 October 2011 12:29,

    I'm not sufficiently well-versed in the Strasbourg authorities on retrospectiveness or deprivation of property to give you an authoritative analysis on that point.

  8. LPW

    Is it then possible that if the Supreme Court uphold the appeal they are correctly applying the law?

    Would it then follow, that the outcome would have been the same if Scotland were not part of the UK, the only difference being that the case would have been finally determined in Strasbourg rather than London (if Lord Hope's the leading judge the decision would actually be written in his New Town home?

    Because if that's the case there's no traction in it for an honest and informed nationalist.

    Not that that will stop Salmond.

  9. Anonymous.... meanwhile, back on planet earth.....as you claim to be.

    Might is right, is it?

    It's high time lots of "thinkers" had their rude awakening, because flippy-floppy adherence to extant law may keep some in clover - but facts must and will rule.

  10. Barontorc

    I don't think you've grasped the point I was making.

    Nationalists are shaping up to make this an anti London issue.

    In fact it's an anti ECHR issue (at a more fundamental level it's a class, in the Marxist sense, issue, but that's another matter).

    Nationalists would prefer these decisions are made in Strasbourg rather than London.

    Though Salmond seems to think we don't actually need the EHCR, because the guy who wrote the original convention was born in Scotland. Not that he espouses ethnic nationalism or anything.

  11. Oxford and Cambridge are magnificently overrepresented on the bench.
    Cripes, even the Edinburgh alumni are via Oxbridge.

    One senses among the Scottish legalists and politicos the excitement and wondrous anticipation of a child on Christmas eve.

    However. Santa's no gonnae fill everybody's boots.

  12. LPW, we may disagree about the First Minister’s vulpine talents.

    I think that the man described - even by his political adversaries - as the UK’s foremost politician (http://www.heraldscotland.com/life-style/real-lives/ex-labour-minister-alex-salmond-is-the-uk-s-foremost-politician-1.1121678) is well able to consult a political calendar and position his politics in anticipation.

    I agree that Salmond and MacAskill will have to be careful with their language but they have multiple political constituencies; one may be typified by Parliament House or Edinburgh Uni’s Old College – a powerful constituency indeed – and as I say I think Salmond overplayed his hand in the previous round and lost some of the confidence of institutional Scotland as a result. There is, however, another constituency.

    Your thoughts jump forward to Unionists tricky position during a referendum campaign but there are key political staging-posts along the way. In six-and-a-half short months Scotland goes to the polls again in local government elections – only the second to be held under PR. Last time, Labour held on to majorities in only Glasgow and North Lanarkshire. The SNP winning control of Glasgow City Council – ousting Labour – of this totemic authority would rejuvenate some of the hype, elation and momentum experienced this May.

    That’s more than enough reason to capture the City Chamber citadel but this election takes on a special significance. In the summer of 2014 Glasgow will host the Commonwealth Games. Cast your mind back to the Manchester Commonwealth Games in 2002. The TV shots of the opening and closing ceremonies hosted by the Queen, Tony Blair (pre Iraq invasion), and Manchester’s civic leaders were a huge success reported around the world. Think of the political landscape when an SNP Glasgow, an SNP First Minister and the Queen welcome global attention to Scotland. Every indication from media reports (see www.scotsman.com/sport/inspection_finds_glasgow_commonwealth_games_on_track_1_1897219 and www.morethanthegames.co.uk/glasgow-2014/0615573-glasgow-2014-praise-commonwealth-games-organisers-after-inspection-visit) is that the Glasgow Games will be the best organised ever. In the time between August 2014 and the referendum, perhaps only a few months later, Unionists will argue that in spite of what people saw and experienced in Glasgow, Scotland is still incapable of standing on its own two feet.

    Securing Glasgow is a strategic imperative for the SNP leadership. And that, long winded-ly, brings me to Salmond’s other constituency. You personally know SNP campaigners in Glasgow, ask them to knock on the doors of Paisley Road West and Dumbarton Road and talk about asbestos; hear the reactions of people to asbestos as a political issue. I wrote above that it’s emotive and that’s true – the idea of harm caused by asbestos stirs something in the Scottish working-class psyche. Little of the legal argument about the nature of “harm” or the legitimacy of retrospective legislation will penetrate the quotidian narrative. Labour risk being portrayed as sell-outs. In doorstep conversations language like “vile people” won’t have a look in!

    If the SNP can position themselves as the defenders of the victims of asbestos against faceless corporate financial institutions their target constituency may very well deliver them GCC and with it the alpha and omega of SNP raison d’être.

    We’ll know the lie-of-the-land better tomorrow morning.

  13. Anonymous - sorry, I must be missing your point entirely.

    Of course, those interested in Scotland's Law and Acts will protest at the imposition of the ESC and the worse that is to follow, unless it is spiked, as should be done.

    Wednesday's revelations will be very interesting indeed.

  14. Mick

    'If the SNP can position themselves as the defenders of the victims of asbestos'

    I doubt even Salmond is that shameless.

  15. Barontorc

    The point is this.

    This case is about the ECHR.

    If Scotland wasn't part of the UK the result would be the same.

    The only difference is that the case would be decided in Strasburg, not London.

    Do the SNP intend to scrap the ECHR?

    If not, shut up.

  16. I feel sorry for the victims and their families.

    Lives cut short on the alter of financial gain.

    The Scottish parliament acted justly, something the Labourites, Tories and Lib Dems failed to do and rarely ever manage to do (if ever, I can't remember the last time).

  17. Anonymous,

    It isn't quite right that it is merely a matter of Strasbourg or London. A few points.

    Firstly, unless it miraculously differs from the rest of the European Court's canon of judgments, with which I'm much more familiar, I'm willing to bet (but have conceded I haven't made a close study of) that there is plenty of room for interpretation on what Protocol 1 Article 1 actually requires here. The courts are dealing with familiar but obscure legal ideas - proportionality, legitimate aims, the margin of appreciation given to member states to pursue different policy paths. The European Court isn't called "Delphic" for nothing. We are absolutely not in the realm of clear rules which can be straightforwardly applied.

    Secondly, the jurisdiction of the UK Supreme Court and European Court aren't identical, particularly from the perspective of the Scottish Government. Before the UK Court, the question is whether the law falls within Holyrood's legislative competence (which needs must be compatible with the ECHR to be effective). Say, for example, that an enthusiastic UKSC were to launch out on its own, casting the vague and potentially confused European Court's jurisprudence in a more determinate shape, finding the legislation was incompatible with the Convention, and thus, was legally incompetent under the Scotland Act. In that circumstance, the Scottish Government cannot take their case to Strasbourg, to solicit a view on whether the UK Supreme Court correctly divined the level of protection mandated by European human rights law. Even if the European Court might disagree with the UK Supreme Court on what is or is not required under the Convention - the UK Court's domestic determination would still strike down the law. While you are correct that a European ruling that the pleural plaques legislation was incompatible with the Convention would practically have the same effect - the scenario I'm envisaging of a more "activist" UK Supreme Court offering a more robust and legislative-limiting interpretation of Convention requirements is hardly an implausible pipe-dream.

  18. Anonymous - please where's your decorum - I don't need to shut up and you need to recognise that this exists and to quote Peter Thomson, if I may:-

    "Article 19 Treaty of Union:

    "And that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; And that the said Courts, or any other of the like nature after the Union, shall have no power to Cognosce, Review or Alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same;"

    In Scots Law the Scottish Parliament is where the sovereign Scots exercise their power."

  19. News Just In:

    Stushie avoided.

    Nats grub around for another hobby horse.