- Can Judges strike down Acts of the UK Parliament [May be, in extreme circumstances]
- Can Judges strike down Acts of the Scottish Parliament at common law on judicial review [Yes, but only in the same limited circumstances as the High Court in London will permit judicial review of secondary legislation which has been actively approved by Parliament]
- Will Judges be able to strike down Acts of the New Welsh Assembly in the same way [May be not, because of the way the legislation is drawn]
This all came up in a challenge by some very big insurance companies to the Damages (Asbestos-related Conditions) (Scotland) Act 2009. I used to get lots of cash for claimants suffering from asymptomatic pleural plaques after industrial/occupational asbestos exposure. Then the House of Lords in Rothwell decided that there was no actionable damage and brought the right to compensation to an end. Rothwell was an English private law case and not binding in Scotland, Thompsons, however, solicitors, who have carriage of many of these actions were perturbed that their clients and their costs were about to become unpaid in Scotland as well as in the rest of England and Wales. The UK Government declined to legislate to reverse Rothwell, presumably the insurers won the lobbying competition with the Unions.
Well in Scotland, it would seem that the Unions won the lobbying battle and the Scottish Minsters decided to pre-empt Rothwell being imported into Scots Private Law and legislate to make clear that in Scottish Law, pleural plaques are recoverable damage. The extent to which the Scottish Ministers surrendered to Thompsons and the Unions is quite startling. The judgment gives away that Thompsons drafted and promoted the Bill. Indeed the judgment contains a letter from a Scottish Civil Servant which appears to show the Scottish Ministers firmly in league with the Unions against the insurers - see paragraph 22. The Unions won and the Bill was passed. The insurers are not happy.
So they started a legal challenge that wound up before the First Division of the Inner House of the Court of Session, before the Lord President (Lord Hamilton) and Lords Eassie and Hardie (think Court of Appeal in London, with LCJ and MR sitting). Lots of novel questions arose such as those set out above - plus interesting questions about whether the insurers were 'victims' for the purposes of a human rights challenge because theoretically it is their insureds (the employers) who have to pay damages and they just indemnify. It was held that they were victims. The Court also went on to hold that requiring a insurance company to so indemnify by reason of an Act of the Scottish Parliament was an interference with property rights which needed to be justified under Article 1, Protocol 1 ECHR. They did find the Act so justified and so, in the end, the challenge failed. A very very interesting judgment nonetheless and I would be surprised if it did not end up in the Supreme Court (of the United Kingdom).
This judgment also flashes up yet another example of the asymmetry of devolution - Scottish claimants can get damages for pleural plaques - English and Welsh (and probably also Northern Irish) claimants cannot. Quite what happens if your worked for a company and were exposed to asbestos in Scotland and England is beyond me......