Judicial review of pleural plaques Bill

The first stage of the insurers’ attempt to strike down the Damages (Asbestos-related Conditions) (Scotland) Act 2009 by way of judicial review ended in failure on 27 April 2009.

In Axa General Insurance Ltd and others, Petitioners [2009] CSOH 57 the petitioners sought interim interdict to prevent the Scottish Ministers bringing the Act into force on 17 June 2009, which would be before the hearing of their judicial review petition against the Act as contrary to Articles 6 and 1 First Protocol ECHR (fair trial and protection of property) and irrational (Wednesbury unreasonableness) and arbitrary. 

Lord Glennie refused the interim interdict, and in doing so cast considerable doubt on whether the petitioners’ main case would succeed.  “The petitioners,” he said, “have shown a prima facie case but .. on the question whether the interference whether the interference with their rights under Article 6 and Article 1 of the First Protocol is justified in the public or general interest, I do not regard that prima facie case as a particularly strong one.  In those circumstances it seems to me that I should not grant interim interdict.” (para 19).

The petitioners’ lines of argument in their human rights case emerge as follows.  The right to a fair trial is affected because the legislation in effect deprives them of their right to a hearing in court, without a sufficiently weighty public interest to justify that.  The right to possessions is affected because the petitioners have been deprived of a defence to a claim, which counts as a possession, again without a countervailing public interest that justifies the deprivation.  Lord Glennie comments as follows on the public interest aspect of this argument:

“I have more difficulty with the petitioners’ contention that the policy of the Act does not reflect any legitimate public or general interest.  It is well-established that the courts will afford the legislature a wide margin of appreciation or, as it is put in the domestic context, will concede to the legislature a discretionary area of judgment in determing what is in the public or general interest … [T]he Scottish Parliament has taken the view that [pleural plaques victims] ought to be entitled to claim compensation, if not for any present physical disability, then at least for .. anxiety and the risk of the condition worsening.” (para 13)

Lord Glennie did not find it necessary to comment on the irrationality argument, merely noting the Scottish Ministers’ counter-argument that such common law grounds of challenge were not available against Acts of the Scottish Parliament, and then saying that “it is clear that the common law challenge … can be no stronger than the challenge based upon Convention rights” (para 14).

The opinion also indicates that there are about 600 pleural plaque cases currently sisted in the Court of Session, awaiting the Act’s coming into force with retrospective effect.  Around 400 further claims have apparently been intimated but not yet started.

QLTR’s accounts a ‘total shambles’: Auditor General

The Auditor General for Scotland, Robert Black, reported to the Scottish Parliament’s Public Audit Committee on 22 April 2009 that the accounts of the Queen’s and Lord Treasurer’s Remembrancer were “a total shambles”.

The Scotsman for 23 April reported that annual accounts were submitted late from 2006 to 2008, and that the auditors were critical of a “lack of clear instruction” and “considerable delay”.

The Crown Office, under whose umbrella the QLTR shelters, said that the next set of accounts would be produced on time.  Watch this space.

First ‘right to roam’ case from the Court of Session: no access

The first “right to roam” case to reach the Court of Session was decided on 22 April 2009, and the court ruled against the access claimed. 

The case, Tuley v Highland Council [2009] CSIH 31A, was an appeal against a decision of Dingwall Sheriff Court noted previously in Scots Law News here.  The land in question was Feddonhill Wood at Fortrose in the Black Isle.  The owners (the Tuleys) generally allowed and indeed encouraged public access on foot, bike and horseback but had deliberately blocked one path to horse-riders on the grounds that horse traffic would seriously damage the track and made it unusable by pedestrians. 

The sheriff’s order for the removal of the barriers to horse-borne access was overturned by an Extra Division the opinion of which was delivered by Lord Eassie.  In essence the court found that the Tuleys’ barrier was not a barrier to access as such but was rather a reasonable effort to manage access to make the various forms of public use compatible with each other.  This fell within what was permissible under section 14 of the Land Reform (Scotland) Act 2003, even though the feared damage had not yet occurred.  There was no need to wait until damage occurred before taking action.

Naked rambling update

Naked rambling correspondent Bernard Boase has sent in two items relating to Steve Gough and the comparative law of naked rambling respectively.

First he has published here (with permission) two letters from Steve Gough outlining the arguments he wants to develop in his next court appearance. 

On comparative naked rambling law, Bernard writes (on 14 April 2009):

“I have been in correspondence with a Swiss friend who does a lot of nude rambling in the Alps (both summer and winter, lucky chap), and I have been posting his reports to me on the discussion forum here

They include an informed comment from Daniel Kettiger, a Bern lawyer, who is sure that the Swiss (i.e. Federal) Penal Code does not permit the canton Appenzell Innerrhoden to introduce their proposed legislation later this month.

It looks like Appenzell will attempt to make fines legal in the canton, and impose them on naked hikers this summer. No doubt a prolonged legal wrangle will try and reverse it all later on. We watch with interest.

And the French now have an organisation (APNEL: Association pour la Promotion du Naturisme En Liberté, http://apnel.free.fr) whose aim is the amendment of article 222-32 of the French Penal Code ("L'exhibition sexuelle imposée à la vue d'autrui dans un lieu accessible aux regards du public est punie d'un an d'emprisonnement et de 15000 euros d'amende") so that non-sexual nudity be not treated as sexual exhibition.

Some of the inspiration may come from the example of the Spanish, whose Penal Code clearly permits public nudity that is neither sexual nor threatening.”

Thanks to Bernard for this update.  Scots Law News is further grateful to Gillian Black for drawing our attention to a BBC story on 27 April confirming that Appenzell had voted to impose criminal sanctions against naked hikers in the canton.  Further developments awaited with interest.

Succession report from Scottish Law Commission: mistresses to be cut in?

The Scottish Law Commission published its long-awaited Report on the Law of Succession on 14 April 2009.

Key recommendations are (1) a basic entitlement for a surviving spouse or civil partner to inherit the whole estate if a person dies intestate (up to a limit of value to be fixed by the Scottish Parliament); (2) an ability to disinherit the surviving spouse or civil partner by will, although the survivor will be entitled to 25% of what they would have got had the deceased died intestate; (3) similar provisions in relation to surviving children; OR, as an alternative model, an entitlement for dependent children only to a capital sum calculated by reference to their maintenance needs; (4) cohabitants to get a percentage based on what they would have got if they were a surviving spouse or civil partner, but the calculation to depend on the length and quality of the cohabitant’s relationship with the deceased.

The Scotsman for 15 April chose to headline (4) as “Mistresses should get share of dead lovers’ estates, says Law Commission”, because the cohabitant has a claim even if there is a surviving spouse as well.  On the other hand, wasn’t a continuing claim for a surviving but non-cohabiting spouse a bit unfair on the surviving cohabitant, asked a clearly anxious BBC presenter in a radio interview with Law Commissioner Joe Thomson that Scots Law News happened to catch while on the road on 14 April?  “If they (the married couple) don’t like each other, they should just get divorced,” replied Professor Thomson in his inimitable style.  Na, na, there’s nae nonsense with the Professor. 


Time-bar on human rights actions against Scottish Ministers

A draft statutory instrument was laid before both the Westminster and Scottish Parliaments on 11 March 2009 as the first step towards the reversal of the House of Lords decision in the prisoners’ slopping-out case, Somerville v Scottish Ministers 2008 SC (HL) 45, that there is no time-bar limiting human rights claims under the Scotland Act 1998 (unlike the Human Rights Act 1998).

The SI, to be known as the Scotland Act 1998 (Modification of Schedule 4) Order, amends the said Schedule to enable an Act of the Scottish Parliament to modify the Scotland Act itself and impose a time-limit on claims against Scottish Ministers or members of the Scottish Executive made on the ground that an act of either party is incompatible with Convention rights.  Once this has come into force, the Scottish Government intends to introduce primary legislation establishing a one-year time bar in such actions.

The approach of the Scottish Government will be challenged by Aidan O’Neill QC in a forthcoming note in the Edinburgh Law Review (also available at Jonathan Mitchell's blog), arguing that since judicial review is within the devolved competence of the Scottish Parliament, it is perfectly possible to introduce a time-bar for such cases as and when they involve claims for damages, as in the slopping-out cases.  The argument of the Scottish Government, that it would have had to amend the whole of the law of prescription and limitation and thus adversely affect the claims of the deserving, such as victims of pleural plaques or industrial accidents, seems, for the reasons put forward in Mr O’Neill’s note, to be unconvincing.

The Scottish Minister’s statement on the steps being taken contains some interesting data on the costs of the slopping-out fiasco.  The Scottish Prison Service has set aside £67 million to meet the prisoners’ damages claims.  As at 5 March, 3,737 cases had been settled at a total cost of £11.2 million and a further 1,223 cases were being dealt with.  New claims were being raised at an average of 200 per month.  The time-bar will not, it seems, be retrospective, but allow the Scottish Government “to draw a line” under its liability in relation to claims made after the new legislation comes into force, possibly saving £50 million of the £67 million already set aside. 

The Scottish Government hopes to have its legislation in place before the summer recess.  Prisoners hope to have their claims in before then.