Devolution in the courts: the UK Supreme Court considers the ‘pleural plaques’ legislation

The ‘pleural plaques’ case is being heard at the UK Supreme Court this week.  For those who haven’t followed this, the issue is whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is within the Scottish Parliament’s legislative competence.  This was passed in response to a House of Lords decision about whether ‘pleural plaques’ and asbestosis, both conditions that arise from exposure to asbestos, give rise to claims in damages.  The Lords decided they did not; the response of the Scottish Parliament was to pass legislation giving a legal foundation to damages claims.  The validity of that has been challenged by a number of insurers, who will bear the financial liability for such claims (which arise from exposure at work).  Case details are available from the Supreme Court’s website here, and there are posts by Aileen McHarg of Glasgow Law School on the UK Constitutional Law Group blog about the Inner House (appeal) judgment of the Court of Session here, and the appeal to the Supreme Court here.  The case will be heard by a seven-judge panel, more than half the court.  (Indeed, as there’s one judge missing pending Jonathan Sumption QC’s arrival in the autumn, and Lord Rodger of Earlsferry is unable to sit for health reasons, it’s a very large proportion of the available judges.)

This is a large court considering an issue that’s unprecedented, but of great importance for the legal working of devolution.  This is only the second time the highest court has considered whether devolved legislation was within legislative competence when human rights issues and compliance with the European Convention on Human Rights are not at issue, after the Martin and Miller case.  This is being heard before a larger court than Martin and Miller, too. It’s also the first time there has been a full-dress ‘devolution issue’, with interventions by law officers from other governments as well.  Indeed, part of this hearing is taking place because the Attorney General for Northern Ireland referred Northern Ireland legislation to the Supreme Court using the direct procedures set out in the Northern Ireland Act 1998.

There’s also an important principle at stake.  In both the Court of Session judgments, there was discussion of the extent to which devolved legislation should be subject to requirements of proportionality and reasonableness, a hugely important question when elected autonomous legislatures are involved. (It’s worth pointing out that in some of the earlier Canadian Privy Council cases, that court had little difficulty in concluding that such considerations did not apply to the powers of Provincial legislatures. See Russell v. The Queen [1882] 7 App Cas 829 and Hodge v. The Queen [1883] 9 App Cas 117.)  The outcome on that question will profoundly affect just what the devolved legislatures can actually do, in Wales as well as Scotland and Northern Ireland – which is why the Counsel General has intervened in the case, even though the structure of Welsh devolution is so very different to that in the other two jurisdictions.

We’ll probably have to wait at least until the middle of August before the court issues its judgment, but those interested should be able to watch the court’s proceedings between Monday and Wednesday via Sky TV, or here.