Thursday, 27 October 2011

AXA General Insurance Ltd & others v Lord Advocate & others [2011] UKSC 46: part of the union

There is an age old debate whether the Court can strike down an act of Parliament.  Such an action would be a bold step.  It would overturn democracy in favour of a kritarchy.  On the other hand, can the democracy deny itself rights without the protection of an independent judiciary?  Can Parliament legislate away the right to vote?
No such case has yet come forward.  At least not for the UK.  But the point has been raised with regard to Scottish Acts.
Pleural plaques are spots that can grow on people’s lungs if exposed to asbestos.  They are not “damage”.  They do not cause harm or injury and in the Rothwell v Chemical & Insulating case the House of Lords ruled there was no claim for pleural plaque infliction.  The Scottish Parliament thought this was unfair; it passed a law (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) opening up an avenue for insurers to be forced to pay those with pleural plaques.  The insurers thought this unfair in turn and went to the Supreme Court to overturn the Act.
There were a number of attacks.  One was that the Scottish Parliament could not legislate on such an issue; it was ultra vires.  The Scottish Parliament can only pass laws that Westminster allows it to pass.  The test of that was compatibility with the Human Rights Act and, in particular, the right to property.  The insurance companies said they were losing property, i.e. money, and that Scotland had no right to take it from them.  The Supreme Court had to look therefore to see whether that interference was for a legit aim and was a reasonably proportionate way to do so.
The Supreme Court held that it was.  Lots of Scots have pleural plaques, the Clydeside shipping industry being particularly prone to exposure to asbestos, the Scottish Parliament wanted to legislate to cover this, and it had done so in a human right compatible manner.  So the Act was within the competence of Holyrood.  far so good.
But then there was another step; the constitutional question of striking down Acts.  The insurance companies said there was an argument that Holyrood had used its power capriciously.  And if it had, it was subject to judicial review.  Like every government decision.  Was Holyrood indeed subject to judicial review?  Could the Court look at an Act of the Scottish Parliament and deem it unfair?

The Supreme Court held that, although Scottish Acts were as much law as anyone else’s, they were subject to powers delegated by the Crown.  Its own establishing documents say that it cannot go outside its powers – any act that tries to do that is not really an act after all.  Someone has to decide whether an act DOES stay within Holyrood’s boundaries; that someone surely has to be the Court.
So the principle is there.  How far CAN a Court interfere with what is an expression of democracy?  Is there a fundamental right for justice to overrule democracy that democracy cannot challenge, or does the Court derive its power from the people and therefore must always step back from challenging?  Eminent judges like Bingham, Neuberger, Steyn and Hailsham had come to different conclusions over this...and the Supreme Court preferred not to resolve that debate.  Instead they said that there is a statutory limit on Holyrood’s competence, and that’s all there was to it.  An irrational decision would surely step over the Human Rights Act obligations, which would take an act outside of being an Act.
The odd thing about the judgment is that it confirms there is no limit to Holyrood’s power, as delegated to it; there is nothing that says “all your laws must be in relation to Scotland”.  Presumably Scotland passing a law that would impact the English would be squished by the Human Rights Act compatibility – no taxation without representation sort of thing – but otherwise the Scottish Parliament can be as irrational as it likes.  Scots law could diverge very far from English unless Westminster shackles Holyrood.  Which it can – so would it?  That would impact the very nature of the Union; ever closer or ever separate?

Wednesday, 12 October 2011

Ferdinand v MGN Limited [2011] EWHC 2454 (QB): caught offside

Can an England captain keep the media shtum when they find he’s playing away?  No.  His right to privacy is trumped by the public’s right to know.
Does this contradict past privacy cases?  Naomi Campbell seeking treatment or Max Mosley seeking other sorts of treatment?  No.  They never made a big deal of their afflictions.  Mosley never held himself out as a paragon of marital virtue; Campbell never held herself out as a paragon of private sobriety.  The media knew this.  Hence the News Of The World trying to tie a Nazi angle into the Mosley story.  The public need to know if the head of an organization that represents them has political views that would cause his impartiality into doubt.  Mosley is not a Nazi; the removal of that angle removed the public interest.
So why does the public have a right to know that Rio Ferdinand had had an on-off affair for a dozen years?  Because his private life had a bearing on his position.  Fabio Capello (England boss) said that he appointed Ferdinand as England captain because he was a good example.  Unlike his predecessor – dismissed due to an alleged affair.  Ferdinand wrote in his autobiography (or at least had had written for him) that he had given up the party lifestyle some years before when he settled down with his fiancĂ©e.  He had said to a newspaper that he was now quite the family man.
All of these factors calculated to lead people to believe that Rio Ferdinand was an upstanding member of society; that he was someone who could be trusted.  That’s one thing, but as part of it his name was valuable.  The family man was paid to advertise things because he was a family man.
So when the Mirror published a kiss & tell story, and Ferdinand sued for the obvious breach of his privacy, the Mirror dragged this past history up.  Privacy is not an absolute right.  Sometimes the public’s need to know overrides someone’s privacy; it’s in the public interest to find a politician is a crook.  This is more at the minor end.  It is also, says the Court, in the public interest to correct a false image.  The Mirror claimed that this is exactly what it was doing.  Ferdinand was not the chillaxed role model; he was still conducting an affair at the moment he was made England captain.
Therefore the Court allowed the publication.  There was a limited right to privacy – the Mirror could not be too intrusive – but the Mirror was on the right side of that.
It could have been very different.  Had Ferdinand been a Paul Scholes, for example, a player who famously keeps his private life out of the public eye, there would surely have been no public interest; only if it had affected his performances, for example.  But there would be no false public image to correct so no justification.  Had Ferdinand not “written” a book or sought to correct a negative image in the media, he might have been fine...