The UK Supreme Court has handed down its decision in AXA General Insurance v Lord Advocate  UKSC 46. The case raises critically important questions for the whole of the UK, and also some significant points of concern in Scotland. But please do not read this as a Scottish case only, or as a case which only the Scots need to worry about.
Earlier judgments in the case are summarised at pp 236-7 of the book. What the Supreme Court has ruled now supersedes what the Court of Session had ruled, and the extract on p 237 from the judgment of the Lord Ordinary now needs to be read subject to what the Supreme Court have said.
The Damages (Asbestos-related Conditions) (Scotland) Act 2009, an Act of the Scottish Parliament, provided that pleural plaques and certain other asbestos-related conditions were actionable in Scotland for the purposes of damages in the law of personal injury. In 2007 the House of Lords had ruled in a series of English appeals that pleural plaques did not constitute recoverable damage for the purposes of the law of negligence (see Rothwell  UKHL 39). AXA and other insurance companies challenged the Act of 2009 both on common law and on Convention rights grounds.
The challenge was unsuccessful in both the Outer House and the Inner House of the Court of Session (see  CSOH 2, 2010 SLT 179 and  CSIH 31, 2011 SLT 439, respectively). AXA’s appeal to the Supreme Court was likewise unsuccessful, a seven-strong panel of Justices ruling unanimously that the appeal should be dismissed. Substantive judgments were given by both the Scots on the panel: Lord Hope and Lord Reed. Lords Brown and Mance gave short concurring judgments, and Lords Kerr, Clarke and Dyson agreed with both Lords Hope and Reed. (Lord Reed is a Senator of the College of Justice — i.e., a judge of the Court of Session; he is one of two such judges to have sat in the Supreme Court since Lord Rodger (who died in June) was taken ill. Lord Rodger’s chair at the Court is formally vacant, but it has been advertised and it will no doubt be filled soon.)
Three issues of law arose on the appeal to the Supreme Court: (i) was the Act of 2009 violative of AXA’s Convention right to property under Article 1 of Protocol 1 to the ECHR (“A1P1”)? (ii) could an Act of the Scottish Parliament (“ASP”) be judicially reviewed under common law grounds of review and, if so, was the Act of 2009 irrational? (iii) did a number of individuals diagnosed with having pleural plaques have title and interest (i.e., standing) to be joined to the action as respondents?
The case is constitutionally significant for what the courts have said about the second issue. But before we get to that, let’s get the first and third issues out of the way.
On the first issue the Supreme Court agreed with the Court of Session that the answer was no: A1P1 was engaged but it was not violated here. There was a legitimate aim for the interference with property, and the interference was proportionate. Property lawyers or other experts in property rights may have more to say about this, but the reasoning of the Supreme Court on this issue struck me as unremarkable.
Standing (of interest mainly to Scots lawyers)
On the issue of standing the Supreme Court changed Scots law. In England and Wales a party has standing to seek to judicial review if that party has “sufficient interest” in the matter. As we report at pp 712-3 of the book the courts in England and Wales have tended to interpret this requirement liberally and flexibly in recent years, such that it has become much rarer than it once was for parties to lose a case solely because they lack standing. In Scots law, by contrast, the test has been whether a party has “title and interest”. This test comes directly out of private law. It has tended to be applied rather strictly by the Scottish courts, so that there have been instances in recent years of claims falling at this hurdle in Scotland which would not have fallen at this hurdle in England and Wales (examples are given by Lord Hope at para 59 and by Lord Reed at para 166).
Both Lords Hope and Reed call time on all this and rule that the old phrase “title and interest” should no longer be applied in judicial review. The implication is that Scots law should more clearly and more closely resemble English law in this regard. Lord Reed goes so far as to suggest that “sufficient interest” should be the test in Scotland (para 171). Lord Hope says that a party should be required to show that he or she is “directly affected” (para 63). Whether this amounts to two ways of saying the same thing, or whether there is a difference of substance between Lord Hope’s formulation and that of Lord Reed is a matter that the Court of Session will no doubt have to address in the years to come.
Before we leave this point, it is worth noting that this is the second time this year that the Supreme Court has overturned an old and long-standing aspect of the Scots law of judicial review (the previous example was the overruling of Watt v Lord Advocate in Eba v Advocate General, on which see my posting of 29 July). In both instances the effect has been to further the harmonisation of the law north and south of the border; in both instances it is Scots law that is brought into line with English law, and not the other way around.
Judicial Review of Legislation (of interest to ALL UK lawyers)
And now to the heart of the case, from a constitutional point of view.
Section 29 of the Scotland Act 1998 provides that an Act of the Scottish Parliament (“ASP”) “is not law” if it is outside legislative competence or if it is incompatible with Convention rights or with EU law. The question posed in AXA was whether section 29 provides an exhaustive list of the grounds on which an ASP may be challenged in legal proceedings, or whether it is additionally possible to argue that an ASP may be unlawful on common law grounds of judicial review (i.e., illegality and irrationality, as defined by Lord Diplock in the GCHQ case). On the one hand the Scottish Parliament is a creature of statute with limited powers, just like many other public bodies whose actions and decisions are subject to judicial review. On the other hand, the Scottish Parliament is a Parliament, not an ordinary public body, it is democratically elected, and it has the power to make law, indeed to make Acts which, like Acts of the UK Parliament, require the Royal Assent before they come into force (see Scotland Act, s 28). Moreover, the legislative power of the Scottish Parliament includes the power to amend or repeal Acts of the UK Parliament, as long as this is within legislative competence. And, of course, Acts of the UK Parliament are not subject to common law judicial review on grounds of illegality or irrationality.
Or are they?
In AXA the Court of Session ruled that ASPs are potentially subject to judicial review on grounds of illegality or irrationality but only in the extreme circumstances that bad faith, improper motive or manifest absurdity could be shown (and no such thing could be shown here). This is the force of the Lord Ordinary’s opinion, as extracted at p 237 of the book; and the First Division of the Inner House agreed with this line.
The Supreme Court has taken a different approach. The key passages are paras 42-52 of Lord Hope’s judgment, and paras 135-54 of Lord Reed’s judgment. These passages repay close and careful attention. It is worth repeating that the other (English) Justices on the panel agreed with what Lords Hope and Reed said in these passages (with one (immaterial) qualification given by Lord Mance at para 97).
For Lord Hope, ASPs are in principle amenable to the supervisory jurisdiction of the Court of Session at common law (that is, they are in principle subject to judicial review) (para 47). Case law on the extent to which delegated legislation that has been approved by Parliament is subject to judicial review is of only limited help in the context of ASPs, according to Lord Hope: rather, he said, “we are in this case in uncharted territory” (para 48) and the issue therefore has to be addressed as one of principle. And while “the dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy” (para 49), the “guiding principle”, for Lord Hope, was (as he had said in Jackson — see p 92 of the book) “the rule of law enforced by the courts”, this being “the ultimate controlling factor on which our constitution is based” (para 51).
Lord Hope states that, in the context of reviewing legislation, the courts should “intervene, if at all, only in the most exceptional circumstances” (para 49) but what is fascinating about his analysis of the circumstances in which the courts should intervene is that he does not seek to rely on the distinction between a sovereign Parliament (such as Westminster) and a non-sovereign Parliament (such as Holyrood). Rather, he emphasises what the UK and the Scottish Parliaments have in common. On the one hand they have in common “the depth and width of the experience of [their] elected members” (para 49), which is why judges should intervene only in extremis. But on the other hand they have in common “a government that enjoys a large majority” and whose party “dominates” (para 51), which is why the judges should reserve the right to intervene to quash legislation that, for example, sought to abolish judicial review or to “diminish the role of the courts in protecting the interests of the individual” (para 51). Lord Hope goes on: “Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para 51). What is to be noted about this reasoning is that it is not expressed to apply solely to Acts of the Scottish Parliament. It is expressed to apply to legislation generally including, apparently, to Acts of the UK Parliament.
And, as anyone who watched the Home Secretary’s speech earlier this month to the Conservative Party conference well knows, at least some Ministers in the current UK Government are clearly contemplating legislation designed to “diminish the role of the courts in protecting the interests of the individual”. We all know that the Human Rights Act is under review and, indeed, under threat.
Now, having said all this, Lord Hope does make it clear that, as he understands the rule of law, it is in conflict with the sovereignty of the UK Parliament and he also makes it clear that in this case the Court does not have to resolve that conflict, because it is concerned with legislation of the Scottish Parliament, and not with an Act of the UK Parliament. So here “the rule of law does not have to compete with the principle of sovereignty” (para 51). Nonetheless, Lord Hope has offered a clear steer that in the event of any such future conflict, he may well side with the Lord Steyn view in Jackson and not with the Lord Bingham view.
In conclusion, Lord Hope ruled that ASPs are not subject to judicial review at common law on grounds of irrationality, unreasonableness or arbitrariness. But rather than qualifying this conclusion, as the Court of Session had done, by reference to bad faith etc, Lord Hope qualifies it by reference to his general conclusions as to the principle that the rule of law means that judges should not recognise as law any legislation that seeks to abolish judicial review or to diminish the role of the courts in protecting the rights of the individual.
Lord Reed did not roam as freely into the terrain of the sovereignty of (the UK) Parliament as did Lord Hope. He confined himself to the issues arising on the facts of the case more strictly. But on the core issue of the amenability of ASPs to common law judicial review, Lord Reed was in broad agreement with what Lord Hope said. Thus, he agreed that, within the scope of its competences, the Scottish Parliament has plenary law-making power (para 146); he agreed that competent ASPs do not have to be passed for specific purposes or with regard to any specific circumstances (para 147); he agreed that this distinguishes ASPs from the acts and decisions of ordinary public bodies and that the ordinary principles of judicial review (as regards proper purposes, relevant considerations, and the like) “generally have no purchase” as regards ASPs (para 147); but he also agreed that if an ASP “offended against fundamental rights or the rule of law” then such legislation ought to be subject to common law judicial review (para 149). According to Lord Reed, the Scotland Act 1998 was not passed in a vacuum: rather, Parliament “legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para 153). There was no suggestion of that in this case, so the common law challenge failed.