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Factual background

Pleural plaques are physical changes in the membranes between the lungs and chest wall.  They are the most common physical marker of asbestos exposure, but they are not themselves malignant and do not themselves cause or contribute to other asbestos-related conditions. However individuals diagnosed with pleural plaques know that asbestos has entered their bodies, and face a much higher risk of contracting lung cancer, mesothelioma or asbestosis. As a result they are liable to become alarmed and anxious for the future, which may reduce their enjoyment and quality of life.

Occupational damages claims by persons diagnosed as having pleural plaques began to emerge in the 1980s. Initially such claims were generally settled without admission of liability.   However as they increased in number a decision was taken to defend them, on the basis that asymptomatic pleural plaques did not constitute actionable damage.  A number of English claims were selected to serve as test cases.  Ultimately they came before the House of Lords, who found in the employers’ favour: Rothwell v Chemical & Insulating Company Limited [2008] 1 AC 281.

The Scottish Government thereafter proposed, and the Scottish Parliament passed, the Damages (Asbestos-Related Conditions) (Scotland) Act 2009, the purpose of which was to ‘reverse’ the decision in Rothwell, and give a right of action in damages in Scotland to persons diagnosed with pleural plaques.

The Appeal

In the present judicial review proceedings the Appellants are insurers, who face liabilities in terms of contracts entered into with employers against whom claims for damages can be brought under the 2009 Act.   They seek to directly challenge the Act on two grounds.

Firstly, they claim it is outwith the legislative competence of the Scottish Parliament in terms of section 29(2)(d) of the Scotland Act 1998, being incompatible with their rights under Article 1 to the First Protocol ECHR.  In particular they argue that the Act is an interference with their right to peaceful enjoyment of their possessions in that it will deprive them of capital resources in relation to payment of claims for pleural plaques, claims which but for the Act would have had no legal foundation.  They further argue that that interference (a) cannot be justified by reference to any pressing social need or legitimate aim in the public interest (given the asymptomatic nature of pleural plaques), and (b) is in any event disproportionate (given the uncertain but very significant financial implications for them as insurers).

Secondly, and more ambitiously still, the Appellants seek to strike down the 2009 Act on the common law grounds that it was an unreasonable, arbitrary and irrational exercise of the legislative power. Noting that Acts of the Scottish Parliament are technically delegated legislation and are thus in principle reviewable at common law, they seek to rely on the approach in Bromley London Borough Council v GLC [1983] 1 AC 768 and to argue – essentially on the same factual basis as in relation to the ECHR claim – that the threshold test for reduction the 2009 Act is met.  Boldly, they argue that even if the test for judicial intervention is as high as ‘manifest absurdity’, it is met in the case of the 2009 Act.  In particular they argue that it gives a right to claim damages to persons who have suffered no loss hitherto recognised by the law of Scotland, in order to preserve a non existent ‘continuity’ with the legal position pre Rothwell.

Additionally, the appeal throws up a long standing and thorny issue in Scottish public law, namely the question of standing to bring judicial review.  While the Lord Advocate is first Respondent to the petition and seeks to defend the 2009 Act, at an early stage of the proceedings eight individuals diagnosed with pleural plaques were given leave to enter the process as additional Respondents.  The Appellants continue to argue that these individuals had no entitlement to enter the process in this capacity.  This argument was rejected as virtually unstatable at first instance (2010 SLT 179), but surprisingly succeeded before the Inner House ([2011] CSIH 31) – which at the same time rejected the Respondents’ arguments that the Appellants did not have standing!

If one thing is clear, therefore, it is that Scots public law in this area is anything but clear; a difficulty which arguably arises because it continues to be shackled to essentially private law concepts of title and interest to sue:  D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7.  A consequence of this approach is the inability of pressure groups and others to bring public interest litigation.  Interestingly, therefore the Supreme Court has given Friends of the Earth Scotland permission to intervene on this issue by way of written submissions.  FoES argue for adoption of the ‘sufficient interest’ test for standing in Scottish judicial review, an approach long since accepted in England and Wales.  It remains to be seen to what extent the Supreme Court will be willing to engage with this issue in the context of the present appeal

Comment

At a time when there is an acrimonious and sometimes ill-informed ‘debate’ in Scotland over the proper role and function of the Supreme Court in criminal devolution issues/human rights cases (see Cadder v Her Majesty’s Advocate [2010] 1 WLR 2601; Fraser v Her Majesty’s Advocate [2011] UKSC 24), the prospect that an Act of the Scottish Parliament might itself be struck down by this Court on Convention grounds has the potential to raise the political temperature considerably.  Only once before did the Judicial Committee of the Privy Council have to consider such a motion – in relation to the very first Act of the Parliament – but in the event had little difficulty in rejecting it:  A v Scottish Ministers 2002 SC (PC) 63.

At the heart of this appeal too is the question of just how wide a margin of discretion the Court will be prepared to afford a devolved legislature when applying the concepts of proportionality and rationality in the light of the Convention.  Concerns as to general approach of the Supreme Court in this area have led both the Attorney General for Northern Ireland and the First Minister for Wales to intervene.  Is the 2009 Act to be treated with no greater deference than – controversially – the council’s policy in Bromley, for example, on the rationale that the greater the powers conferred on the Scottish Parliament, the more astute must be the Court to secure that it does not exceed them (cf. Whaley v Watson 2000 SC 340)?  Or as the Inner House held, was assessment of the validity and weight of the Appellants’ criticisms of the 2009 Act essentially a matter of governmental and political judgment with which the Court should not interfere?

Fascinating though these issues are politically, and for the working of the devolution settlement generally, they would appear to be ones which relate primarily to the application of by now relatively well established law, albeit to a particularly complex and controversial factual situation.  Ironically, perhaps, it is the side issue of title and interest to bring and defend judicial review that gives a tantalising prospect of an important development in substantive Scottish public law.