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?

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