Challenge to Scottish Act of Parliament fails

Mr Richard Keen, QC, Dean of the Faculty of Advocates, and Miss Jane Munro for the insurance companies; Mr Alan Dewar, QC and Mr James Mure, QC, for the Lord Advocate; Mr Aidan O’Neill, QC and Mr Christopher Pirie for the interested parties.

LORD EMSLIE said that in most cases pleural plaques were asymptomatic, confirming an individual’s exposure to asbestos in the past without, in themselves, being causative of anything.

According to long established common law principles, the delict or tort of negligence was not complete until an alleged breach of duty caused damage to an extent recognised by the law. In Rothwell v Chemical and Insulating Co Ltd (The Times October 24, 2007; [2008] 1 AC 281), the necessity for damage was affirmed by the House of Lords.

In Scotland only, the 2009 Act conferred on pleural plaques and on two other asymptomatic asbestos-related associated conditions the status of non-negligible and thus actionable injury.

The petitioners challenged the Act as an unwarranted contravention of the established need for real or material damage in order to complete a cause of action in negligence.

The challenge was advanced both at common law and under articloe 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial, and article 1 of the First Protocol thereto, protecting rights to possessions.

In relation to competency, the question was whether the Scotland Act 1998 contained anything sufficient, whether by clear words or necessary implication, to oust the fundamental supervisory jurisdiction of the courts at common law.

In Somerville v Scottish Ministers ([2007] 1 WLR 2734; 2008 SC (HL) 45) there had been substantial agreement among their Lordships that, however self-contained, selfunderstanding and self-controlled the 1998 Act might appear to be, it did not provide, within its four walls, a fully comprehensive or definitive scheme for the regulation of challenges to the validity of legislation or functions: see Lord Hope of Craighead at paragraphs 17, 18 and 28.

The provisions of the 1998 Act had to be taken to have been drafted against the background of the rule of law, the supervisory role of the courts, and the various remedies already available under ordinary law and practice.

There was no good reason why common law challenges based on illegality or irrationality should not co-exist side by side with their Convention counterpart spelled out the 1998 Act.

Nonetheless, Acts of the Scottish Parliament were in the nature of primary legislation for Scotland and were are not open to challenge on the ground of irrationality short of the extremes of bad faith, improper motive or manifest absurdity: see R v Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council (The Times October 5, 1990; [1991] 1 AC 521).

The petitioners sought to take advantage of a series of Strasbourg decisions to the effect that a violation of article 6 might arise where a state interfered, by means of legislation, with the judicial determination of a current dispute: see Zielinski v France (Application No 24846/94) ((1999) 31 EHRR 532).

The petitioners submitted that the Scottish Parliament had intentionally interfered with the judicial determination of several hundred pleural plaques claims which had, since about 2006, been stayed to await the outcome of the Rothwell test cases.

There had been no violation of the rights guaranteed by article 6. In any event, it was only parties to litigation who could invoke article 6 and the insurers were not parties and not to be treated as equivalent to parties. Only former employers charged with negligence enjoyed party status.

It was not unreasonable or disproportionate for the Scottish Parliament to have designed the 2009 Act to make it applicable to those whose claims had not yet been determined even if an action had already been raised.

The petitioners’ capital resources were a possession for the purposes of article 1 of the first protocol; but the immunity from claims which the decision in Rothwell was said to provide were not. An immunity was not a property right to be equated with a claim.

The facilitation of pleural plaques claims was not a relevant interference with the petitioners’ capital resources. Such consequences were too remote from the legislation.

The Act allowed affected individuals to assert a delictual cause of action against negligent former employers. It did not bear to affect the outcome of any claim. There was no question of the statute appropriating assets in any form.

Any statute was liable to be disadvantageous towards someone’s economic interests at some remove. The ripples spreading outwards from a legislative measure could not be thought to confer or infringe legal rights to an infinite degree.

The petitioners submitted that the 2009 Act had no rational basis, that its aims and achievements were unreasonable, irrational and arbitrary, and that the Government and the Parliament had failed to approach the legislative process in a rational manner.

Where political, social and economic considerations were in play, primary legislation would require to be tainted to a serious and exceptional degree before an application to set it aside could be upheld. The petitioners’ common law challenge to the Act was rejected.

Law Agents: Brodies LLP; Solicitor to the Scottish Executive; Thompsons.