Pleural plaques: cross-border financial trouble

The Sunday Herald for 8 February 2009 carries an interesting story about the pleural plaques Bill which has been taking a surprisingly long time (given its brevity) to reach its final stages in the Scottish Parliament.

The Herald's story is that Whitehall departments which would be likely to be liable for many of the claims that would be made once the Bill becomes law, such as the Ministry of Defence and the Department of Business Enterprise and Regulatory Reform, are refusing to say whether they would absorb that liability or expect to see funds to pay for it transferred from the Scottish Government.  Their potential liability, running into many millions of pounds, arises from responsibility for such bodies as the Rosyth Naval Dockyard, British Shipbuilders and the British Coal Corporation. 

The nub of the problem from a Scottish perspective seems to be an inter-government Statement of Funding Policy under which the Scottish Government pays for costs created by its legislation when these impact upon other UK Government departments.  The current version of this document, which Scots Law News has checked, says –

where decisions taken by any of the devolved administrations or bodies under their jurisdiction have financial implications for departments or agencies of the United Kingdom Government or, alternatively, decisions of United Kingdom departments or agencies lead to additional costs for any of the devolved administrations, where other arrangements do not exist automatically to adjust for such extra costs, the body whose decision leads to the additional cost will meet that cost. 

If the Scottish Government did not have to transfer funds, the cost of the Bill to it would, according to the Sunday Herald, be only £75,000, while Scottish local authorities would have to pay only about £1 million.  

But it looks to Scots Law News as though the Statement is pretty unequivocal, and there doesn't seem to be anything on the face of the document to let the Scottish Government off the hook.  The Sunday Herald story looks like an attempt to put pressure on the Whitehall departments concerned, since responsible Scottish Government Minister Fergus Ewing has given their journalist several quotes, as has the ubiquitous Frank Maguire, who acts for many of the prospective pursuers; but actually the pressure seems to be all the other way.  One can't see the Treasury sanctioning any departure from the Statement, never mind the MoD and BERR wanting to adjust their existing budgets to meet a liability that doesn't currently exist in English law.