AXA General Insurance Ltd v HM Advocate
Acts of the Scottish Parliament can be challenged for breaching Convention rights or exceeding its competence, but not on ordinary grounds of judicial review such as irrationality.
Facts
The Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament, reversed the House of Lords decision in Rothwell v Chemical and Insulating Co Ltd, which had held that pleural plaques, a symptomless condition caused by exposure to asbestos, were not actionable. The Act made pleural plaques a personal injury for which damages could be claimed. Insurance companies, who would have to pay the claims, challenged the Act on the grounds that it breached their right to peaceful enjoyment of their possessions under article 1 of the First Protocol to the European Convention on Human Rights, and that it was irrational.
Legal principle
The Supreme Court held that the Act was lawful. It did not breach the insurers' Convention rights, because the Scottish Parliament was entitled to take the view that there was a social injustice that needed to be remedied. Acts of the Scottish Parliament are not subject to judicial review on the ordinary common law grounds of irrationality, unreasonableness or arbitrariness, because the Parliament is a democratically elected legislature with plenary powers within its competence. Lord Hope said that the courts could intervene, however, if the Parliament tried to abolish judicial review or diminish the role of the courts in protecting the interests of the individual, because the rule of law enforced by the courts is the ultimate controlling factor on which the constitution is based. The court also held that the insurers had standing to bring the challenge.
Related cases on conventions, ministers and devolution
- Re Allister's Application for Judicial Review [2023] UKSC 5
- Attorney General v Jonathan Cape Ltd [1976] QB 752
- Attorney General v National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792
- Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
- Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61
- Martin v Most [2010] UKSC 10
- Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales [2015] UKSC 3, [2015] AC 1016
- Reference by the Attorney General and the Advocate General for Scotland: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42
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