Moreover, Lord Clarke considered that the approach of the Lord Justice Clerk in Wilson v Independent Broadcasting Authority was similar to that applied by Lord Clyde in Scottish Old People's Welfare Council, Petitioners 1987 SLT 179. In that case, in the context of benefits conferred by social security legislation, Lord Clyde said at page 185:
"The purpose of the legislation is to make state benefit available to any member of the public who may qualify for it and it is not unreasonable to see the duty of the proper administration of the legislation as a duty owed to the public. On that basis it can be concluded that any member of the public has at least a title to sue and the only question remaining would be whether he has an interest to do so."
On the basis of these authorities we consider that in passing legislation the Scottish Parliament has a duty to members of the public to act in conformity with the law. As the Lord Justice Clerk observed in Wilson v Independent Broadcasting Authority , we see no reason why an individual member of the public who is adversely affected by the legislation cannot challenge such legislation, provided always that he or she can qualify an interest to do so.
[42] As is apparent from the above authorities, to which he referred, the Lord Ordinary was not, in our view, formulating a new test for title and interest to sue in Scots law. Rather he was recognising the development of the test enunciated by Lord Dunedin, who himself recognised the difficulty of providing a definition setting precise or fixed boundaries and specifically disavowed any intention of doing so. Of necessity, the concept of title to sue requires to be sufficiently flexible to accommodate developments in the law, while at the same time restricting rights of action to those with a real and legitimate interest to protect. As a generality, in matters of public law it may not be particularly difficult to establish title to challenge the legality of an administrative act but it will usually be more difficult to establish some real and practical interest. As the Lord Ordinary recognised, the courts in Scotland have in the past excluded parties where their interest is remote, tenuous, academic or theoretical.
[43] The second criticism of the Lord Ordinary's conclusion that the reclaimers had title and interest at common law to challenge the legislation - which in some respects overlaps with the first - was based upon an alleged disparity between the approach adopted by the Lord Ordinary and that followed by Lady Smith in Forbes v Aberdeenshire Council . In that case the petitioner sought interim suspension of planning permission for work on sand dunes and interim interdict against the grantees of the permission from acting upon, or otherwise implementing, that planning permission. The petitioner lived in a mobile home, situated about one kilometre from the sand dunes, which were not visible from that home. The petitioner had not objected to the developer's application for planning permission and raised her petition as an individual and not in a representative capacity. Senior counsel for the petitioner in that case (Mr O'Neill), relied upon the Aarhus Convention and the Council Directive of 27 June 1985 (85/337/ EEC ) as amended by Council Directive 2003/35/EC of 26 May 2003 in support of his contention that the petitioner had a title and interest to pursue the remedies sought by her. However, as the Lord Ordinary in that petition recognised, it is clear from their terms that the Aarhus Convention and the Council Directive are intended to ensure that members of the public "having a sufficient interest" have access to a judicial review procedure. Neither of those innovate upon our domestic law of title and interest. As Lady Smith stated at paragraph [15]:
"... neither the Convention nor the Directive require Member states to regard each and every one of their citizens as having a sufficient interest in every environmental issue which arises."
As with many legal concepts, issues of title and interest are fact sensitive. The petitioner in Forbes v Aberdeenshire Council did not reside adjacent to the development site; she could not see it from her mobile home; she had not objected to the planning application; and she was not acting in a representative capacity on behalf of a group who had title and interest to pursue the action for judicial review.
[44] In the passage quoted above from paragraph [17] of Lady Smith 's Opinion, we note that in the second sentence Lady Smith slightly reformulated Lord Dunedin's well-known dictum concerning title , by referring to a requirement to "being a party to some formal legal relationship which gives him some right against the other party." For our part we would not have introduced the word "formal" into the requirement of a legal relationship. If the use of that word is intended to convey a relationship constrained by legal formalities, excluding the rights of a member of the public qualified to challenge an executive act by reason of his or her membership of a class affected by such an act, such a restriction would appear to be contrary to authority ( Wilson v Independent Broadcasting Authority ; Scottish Old People's Welfare Council, Petitioners ). Moreover, such restriction would be incompatible with the recognition by Lord Dunedin that the word "party" should be used "in its widest sense" and also with the need for flexibility recognised by Lord Clarke in Rape Crisis Centre v Secretary of State for the Home Department to enable the concept of title to sue to accommodate developments in the law. On the other hand, the terminology used by Lady Smith might be construed as meaning no more than that there should be a legal relationship conferring rights upon the individual who wishes to vindicate these rights by litigation. So construed, Lady Smith's definition would be consistent with the broad flexible approach mentioned by the Lord Ordinary and would include members of the public deriving their rights to litigate from an unlawful administrative act where they have a real interest to invoke the supervisory jurisdiction of the court.
[45] However, even if it were accepted that Lady Smith 's definition was too narrowly formulated, we do not agree with the suggestion made by Mr O'Neill to the effect that Lady Smith 's "expressed doubts" in Forbes v Aberdeenshire Council over the petitioner's title and interest in that case appeared to be misplaced. The circumstances of that case were such that, applying the test enunciated by the Lord Ordinary, the inevitable conclusion was that the petitioner in Forbes v Aberdeenshire Council had no sufficient title and interest to pursue her application for judicial review.
[46] In these circumstances we have come to the conclusion that, having been invited to address the matter as a preliminary issue, the Lord Ordinary rightly reached the view that, were it open to the reclaimers to challenge the validity of the 2009 Act on some ground other than those expressly contemplated by the Scotland Act 1998, the reclaimers had advanced sufficient title and interest to do so. We do not accept the criticisms of his conclusion on that matter which were advanced by the respondents. But before turning to the important issue whether it be open to the reclaimers to advance such a challenge, it is however convenient in this chapter of this Opinion - related to issues of title and interest - next to consider the reclaimers' challenge to the title and interest of the third to tenth respondents to enter the process as defending parties.
Title and interest of the third to tenth respondents [47] As already narrated, the third to tenth respondents entered the process following the interlocutor pronounced by Lord Uist on 8 May 2009 in the exercise of his discretion under Rule 58.8(2) of the Rules of the Court of Session. Lord Uist refused leave to reclaim against that interlocutor. However, this reclaiming motion has the effect of submitting to the review of the Inner House all previous interlocutors in the case (Rule of Court 38.6(1)). Thus the reclaimers invite us to review that interlocutor of 8 May 2009 .
[48] In his submissions on this branch of the argument the Dean of Faculty referred at the outset to the terms of Rule of Court 58.8(2), which we repeat for convenience:
"(2) Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process; and if the motion is granted, the provisions of this Chapter shall apply to that person as they apply to a person specified in the first order."
The Dean of Faculty noted that the clause "and who is directly affected by any issue raised" was inserted into this Rule of Court by paragraph 2(2) of the Act of Sederunt (Rules of the Court of Session Amendment No.5) (Public Interest Intervention in Judicial Review) 2000 (SSI 2000 No.317). That Act of Sederunt also added a new rule, namely Rule 58.8A, which provides that a person to whom Rule 58.8(2) does not apply may make an application to the court for leave to intervene in a petition for judicial review. The court may grant leave to intervene in terms of Rule 58.8A only if it is satisfied as to the matters specified in Rule 58.8A(6), namely that the cause, and the issue in the cause which the applicant wishes to address, raise a matter of public interest; that the propositions to be advanced by the applicant are relevant to the cause and likely to assist the court; and that the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability for expenses. Further, in terms of Rule 58.8A(8) the intervention is normally in the form of a short written submission. In this case the Counsel General to the Welsh Assembly Government sought and was granted leave to enter the process under Rule 58.8A and lodged a written submission.
[49] The Dean of Faculty made plain that the reclaimers would have had no objection to the third to tenth respondents entering the process as interveners pursuant to Rule 58.8A but the reclaimers objected to their being allowed to enter the process under Rule 58.8(2). He reminded the Court that Rule 58 replaced Rule 260B in an earlier version of the Rules of the Court of Session. Rule 260B in that version had itself been introduced by an amending Act of Sederunt. It was a procedural amendment which did not and could not alter the substantive law ( West v Secretary of State for Scotland 1992 SC 385 , at p 404). Similarly the amendments to Rule 58 introduced by the Act of Sederunt in 2000 could only regulate matters of procedure. Thus the words "directly affected" had to be construed and applied consistently with the underlying substantive law. Section 7 of the Human Rights Act 1998 modified the substantive law by providing that, in the context of judicial review proceedings in Scotland raising an issue under the Convention, an applicant is deemed to have title and interest to sue only if he is, or would be, a victim of the act of which complaint was made. The term "victim" bore the same meaning for this purpose as it bore in the jurisprudence of the Strasbourg court concerning article 34 of the Convention. Thus a person claiming to be "directly affected" and seeking leave to enter the process, required to show that he was or would be a victim of the measure in question. It was submitted that such an interpretation of the Rule of Court accorded with the fact that the amendments to Rule of Court 58.8 came into force on 2 October 2000, the date on which the Human Rights Act 1998 itself entered into force throughout the United Kingdom. The third to tenth respondents were not victims directly affected in terms of article 34; they were beneficiaries of an unlawful act by the Scottish Parliament and had no title and interest to enter the process to defend the legislation. They were in no different position from any other person suffering from pleural plaques. Parties were aware of 567 cases of pleural plaques. If it were appropriate to allow the third to tenth respondents to enter the process as parties, the same should apply to the other 559 persons in a similar position. The public interest in defending the legislation was served by the Lord Advocate, although others might be permitted to enter the process as interveners by virtue of Rule of Court 58.8A.
[50] In the alternative the Dean of Faculty submitted that if "directly affected" was not to be equiparated with the test for victim status under article 34, it must be construed in accordance with the ordinary principles of title and interest. Unlike the petitioners, the third to tenth respondents could not derive title in this case from the duty of the Scottish Parliament to act in conformity with the legal limits on its competence. As these respondents maintain that the Scottish Parliament has acted within its powers, no legal relation to which they are a party had been infringed or denied. The Lord Ordinary had erred in respect that he appeared to conflate interest and title. In paragraph [84] of his Opinion the Lord Ordinary accepted the proposition that these respondents were entitled to enter the process because "valuable claims would be lost" if the reclaimers' attack on the validity of the Act were to succeed. On the contrary, if the reclaimers were successful, the respondents would lose nothing. They would retain any common law right that they might have. If the Act is not law because it is in breach of the reclaimers' Convention rights or is otherwise a nullity on common law grounds, these respondents could not maintain that they are being deprived of anything. The alleged statutory basis of their action was legally non-existent. The only relevant interest in affirming the validity and legality of legislation passed by the Scottish Parliament rested with the law officers, who are the proper contradictors subject to the limited right of intervention envisaged by Rule 58.8A - see Adams v Advocate General for Scotland 2003 SC 171 . If the validity of an Act of the Scottish Parliament were challenged in an action of damages pursuant to its provisions, the action would require to be intimated to the Advocate General and to the Lord Advocate, either or both of whom might participate as a party in the proceedings so far as they relate to a devolution issue (Scotland Act 1998, schedule 6, paragraphs 5 and 6). Thus in the context of an ordinary action for damages, the proper party to defend the validity of an Act of the Scottish Parliament was one or both of the law officers, as opposed to a party seeking to rely upon advantages conferred on him by its terms.
[51] In response, counsel for the Lord Advocate submitted that the third to tenth respondents were "directly affected" by the issues raised in the petition and were thus entitled to seek entry to the process by virtue of Rule of Court 58.8(2). That rule did not involve the same test as that which would apply to title and interest to sue at common law. Rather it was concerned with persons having an interest to defend an action. If the reclaimers were successful, the third to tenth respondents would lose their right to seek compensation following a diagnosis of pleural plaques. Counsel for the Lord Advocate also submitted that the rule was not restricted to permitting parties to defend their Convention rights. It was a general rule, having application in petitions for judicial review generally. Access to the court under Rule 58.8(2) was not granted as of right. The Court had a discretion and if a large number of individuals sought to enter the process a Lord Ordinary faced with such applications could restrict their number by permitting a representative selection to enter the process as parties.
[52] For his part, counsel for the third to tenth respondents submitted that those respondents were entitled to enter the proceedings. The 2009 Act provided the basis for their actions of damages in respect of pleural plaques and they were thus, in the terminology of Rule of Court 58(2), "directly affected" by an issue raised in the petition. Contrary to the Dean of Faculty's submissions, one should assume that the Act was valid. The reclaimers confused title and interest to pursue an action or to make an application for judicial review with entitlement to defend an action or to respond to such an application. Potential detriment, particularly the loss of a statutory right, provided the latter entitlement. In that respect counsel referred to Norwich Union Life Insurance Society v Tanap Investments UK Ltd 2000 SC 515 , per Lord Prosser at p 525; and to Zurich General Accident & Liability Insurance Company v Livingston 1938 SC 582, per Lord Moncrieff at p 590. The inherent jurisdiction of the Court of Session would also have permitted these respondents to enter the proceedings. The number of individuals afforded access to proceedings in terms of Rule 58.8(2) was at the Court's discretion. The words "directly affected" in that rule did not equiparate to a party with "victim status" in terms of article 34 of the Convention. The concept of victim status was first introduced by the Scotland Act 1998 which came into force in May 1999, prior to the amendment of the Rule of Court and the entry into force of the Human Rights Act 1998 in October 2000. If necessary, these respondents could be considered victims in terms of article 34: their participation was aimed at ensuring a fair trial in their actions (article 6 of the Convention) and securing their right to seek compensation under the 2009 Act.
[53] We begin our consideration of the competing submissions on this branch of the argument in the reclaiming motion by observing that the historical background to the introduction of the procedural form of remedy by way of petition for judicial review in Scotland is conveniently summarised in the Opinion of the Court delivered by the Lord President (Hope) in West v Secretary of State for Scotland . It is unnecessary for us to rehearse it. Against that background, the Act of Sederunt (Rules of Court Amendment No.2) (Judicial Review) 1985 (S.I. 1985 No.500) introduced, by virtue of Rule of Court 260B, new procedures for making an application to the supervisory jurisdiction of the Court of Session for judicial review of administrative acts or decisions. In 1994 the Rules of Court then existing were replaced by the rules brought into force by the Act of Sederunt (Rules of the Court of Session 1994) 1994 (S.I. 1994 No.1443). As was observed by the Dean of Faculty, Rule 58.8 is derived from Rule 260B, which it replaced. The Act of Sederunt (Rules of the Court of Session Amendment No.5) (Public Interest Intervention in Judicial Review) 2000 (S.S.I. 2000 No.317) came into effect on 2 October 2000 and amended Rule of Court 58.8(2) by the insertion of the phrase "and who is directly affected by any issue raised" after the words "to be made" occurring on line 2 of the rule (SSI 2000 No.317 paragraph 2(2)).
[54] While the phrase "[a]ny person ... who is directly affected by any issue raised" comprehends a wide range of persons if considered in isolation, we are of the view that its construction in the context of Rule of Court 58.8(2) is constrained by the substantive law on title and interest. The Act of Sederunt which introduced the provision was concerned with the regulation of procedure and did not alter the substantive law. An Act of Sederunt is incapable of doing so - see West v Secretary of State for Scotland , at p 404. Thus the amendment to Rule 58.8(2) giving a person "directly affected by any issue raised" the right to apply to the Court for leave to enter the process would undoubtedly apply to a person who could satisfy the Court that, in addition to the petitioner, he was also adversely affected by the act complained of and as such had a title and interest to impugn the same act or decision and, further, that it would be expedient that he be a party to the proceedings. Rule 58.8(2) thus regulates the procedure whereby such a party may enter the process. But in our view it does not, and could not, create a title to sue or to defend in a person who did not have such a title otherwise. By way of example, a situation inviting use of the procedure provided in Rule 58.8(2) or in Rule 58.8A could arise in the context of judicial review of a decision of a local planning authority granting a planning application. If a local authority granted planning permission to a developer who had failed to comply with the requirement to intimate the application to a neighbour entitled to receive such intimation, thereby depriving the neighbour of the opportunity to object to the application before it was granted, that neighbour would have a title and an interest to petition for judicial review of the decision of the local authority. Such a petition would be served upon the local planning authority and upon the developer, who made the application for planning permission, as the principal parties involved in the allegedly unlawful act. The local authority would have title and interest to answer the petition and thereby seek to defend its decision; the developer as applicant for the grant of the permission would also have title and interest as a party. The local planning authority's right, and the developer's right, to defend derives from Rule of Court 58.8(1) as persons to whom the petition required to be intimated. However, if there were other neighbours who also did not receive the intimation of the making of the application for planning consent to which they were entitled and whose interests would be adversely affected by the development, on becoming aware of the petition such neighbours - although not parties upon whom the petition required to be served - could apply to the court for leave to enter the process in terms of Rule of Court 58.8(2) because they would also be directly affected by the decision of the local planning authority to grant planning permission. Other persons or organisations, who were not adversely affected by the decision to grant planning permission, either because they were not entitled to notification or because they were in favour of the development, might nevertheless wish to enter the process to make representations about the alleged unlawful act. Such representations might be in favour of the decision of the local authority or adverse to it. In either event they would require to rely upon Rule of Court 58.8A and to seek to persuade the court that they should be permitted to intervene to make representations about an issue of public interest arising in the case. The amendment to Rule of Court 58.8(2) and the introduction of Rule of Court 58.8A thus achieve a reasonable balance to respect the interests of all concerned.
[55] In our view, before the third to tenth respondents may rely upon Rule of Court 58.8(2) allowing them to enter the process as a party, rather than an intervener under Rule of Court 58.8A, they must be able to demonstrate such an interest as would entitle them to enter the process as such a party. In that regard counsel on their behalf submitted that as pleural plaque claimants, or potential claimants, they had a right to defend the legality of the 2009 Act since that was the statutory basis for their claims for damages. That submission contains within it the proposition that, in a challenge to the validity of a legislative norm, all beneficiaries, and all of those who perceive themselves to be potential beneficiaries, of a legislative act are entitled to be convened as respondents, in addition to the authority which passed the legislative act or those charged with defending its legality (in this case the Lord Advocate). Apart from Norwich Union Life Insurance Society v Tanap Investments UK Ltd and The Zurich General Accident & Liability Insurance Company Ltd v Livingston counsel for the third to tenth respondents did not refer to any authorities in support of the proposition inherent in the submission. For our part, we do not consider that either of those decisions establishes that that proposition is sound. In Norwich Union Life Insurance Society v Tanap Investments UK Ltd the court was concerned with the interpretation of sections 8 and 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 in connection with the rectification of documents. In delivering the Opinion of the Court, Lord Prosser explained the protection afforded by section 9 to certain persons as follows:
"Put broadly, the section applies to a person where there has been reliance on the terms of the document in question with the result that that person's position has been materially affected. If there is such a person, sec 9(1) provides substantial protection for him: rectification will only be ordered if his interests would not be adversely affected to a material extent or if he has consented." (Paragraph [14])
Although the second defenders failed to satisfy that test because they had not relied upon the terms of the document in question, nevertheless the Court concluded that the possible adverse effect on those defenders could be a relevant factor in the exercise by the Court of its discretion under section 8 of the 1995 Act whether to allow rectification or not. Such a conclusion is not difficult to understand, involving as it did the construction of the relevant statutory provisions, which did not expressly or by implication remove the defenders' right to defend their patrimonial interests. The consequence of rectification of the agreements in that case might well have adversely affected the postponed security held by the second defenders over heritable property. In Zurich General Accident & Liability Insurance Company Ltd v Livingston the court was concerned with the interpretation of section 10 of the Road Traffic Act 1934. Section 10(1) required insurers, subject to the provisions of that section, to satisfy judgments against persons insured by them in respect of third party risks "notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy." Section 10(3) provided inter alia :
"No sum shall be payable by an insurer under the foregoing provisions of this section, if, in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy, he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular ... Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action unless before or within seven days after the commencement of that action he has given notice thereof to the person who is the [pursuer] in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such an action is so given shall be entitled ... to be made a party thereto.".
The pursuers raised an action against their insured for declarator in terms of section 10(3) of the Act in respect of an alleged non-disclosure of a material fact and of an alleged representation of fact which was false in a material particular. Third parties, who had not commenced proceedings against the insured before the raising of the action of declarator, sought leave to be sisted as defenders. The Lord Ordinary refused the crave of the minute on the basis that a statutory title was conferred only upon persons who had been notified of the proceedings, namely parties who had already commenced actions against the insured prior to the commencement of the action of declarator, and the minuters did not qualify in that regard. The court allowed the reclaiming motion against that decision on the basis that section 10(1) conferred upon a third party a statutory but contingent right against insurers of motorists in respect of third party risks. That right subsisted prior to the commencement of an action for damages against the insured motorist. On that basis the party enjoying such a right had a common law title and interest to be heard in proceedings designed to defeat his statutory right by the insurers invoking the statutory exception (Lord President Normand at page 587; Lord Fleming at page 589; Lord Moncrieff at pages 589/590). At page 590 Lord Moncrieff stated:
"It seems to me quite unanswerable that a person, whose statutory right may be taken away by a process of law, should, before his statutory right is taken away, be entitled to be heard as a proper defender against the conflicting claim."
Superficially the observations of Lord Moncrieff might appear to assist the third to tenth respondents. However, they require to be considered in the context of legislation, the legality or validity of which was not in dispute, which undoubtedly conferred upon third parties a right to recover damages from insurers of a motorist for the latter's delict. That right against the insurers could only be defeated if the insurers obtained a declarator in terms of section 10(3) of the Road Traffic Act 1934. Although the statute obliged insurers to intimate any action of declarator to parties who had commenced proceedings against their insured, third parties who had suffered loss as a result of the delict of the insured clearly satisfied the common law test for title and interest to vindicate their rights. In both of the cases cited by Mr O'Neill in his submissions for the third to tenth respondents, the Court was thus concerned with a question of statutory construction and the extent to which existing rights, contingent or otherwise, could be defeated. Where an individual has undisputed rights, even where they are contingent, one can readily understand that he has title and interest to assert these rights either as a party to proceedings or, where he is not such a party, by being allowed to enter the process when these proceedings affect his rights. That should be contrasted with the circumstances in this case in which the legality of the legislation itself is in issue.
[56] We were not referred to any authority supportive of a positive answer to the proposition, inherent in the submission of counsel for the third to tenth respondents, that any beneficiary, or potential beneficiary, of a general legislative measure had title to intervene as a responding party to counter any challenge to its validity; nor are we aware of any. Indeed we consider that there are important indications to the contrary. In cases in which the validity of a bye-law or some other form of secondary legislation is challenged, it has never been suggested that, additionally to the promulgators of the measure, or those responsible for the promulgators of the measure such as a law officer, all who might potentially benefit from it should be called for their interest. Thus in D & J Nicol v Dundee Harbour Trustees , while the title of the pursuers to challenge the use of the ferries for excursions up the Tay was recognised as ratepayers, there was no suggestion that all other ratepayers should be convened as additional defenders to argue that the use of the ferries for excursions was beneficial to their interests as supplementing the funds of the Trust and thereby reducing their contributions. We do not consider that any such attempt by those other ratepayers would have been unsuccessful as they had no title or interest to defend. It is not difficult to see why it has not been seen as necessary, or even appropriate, to convene as defending parties all who might be beneficiaries of an impugned legislative measure. First, there is the obvious practical difficulty of identifying all who might be benefitted by a general legislative measure. In the present case one is not talking of some narrowly defined measure directed solely to people directly and individually identified in the measure. It is of general application to every person, and the families of every person, who might have been exposed to asbestos. The legislation could have been framed yet more widely, as introducing retrospectively claims for damages for worry and anxiety. Secondly, there is the allied consideration that it can only be for the taker of the decision to adopt the norm conferring a benefit on third parties to justify that decision. Only that decision taker - no doubt through the appropriate representative, such as a law officer - can appropriately expound the reasons for its decision. Benefitted third parties cannot add to those reasons.
[57] Since we therefore consider that the fact that the third to tenth respondents may be among the beneficiaries or potential beneficiaries of the legislation in issue does not give them title and interest to be convened as respondents entitled to receive service of the petition challenging the validity of the legislation, we have difficulty in seeing that being such a beneficiary of the legislation can properly be said to give an entitlement to be convened, as respondent, as a person "directly affected", in terms of Rule of Court 58.8(2). That interpretation of the rule would go beyond matters of procedure and move into the field of the substantive law of entitlement to defend. It was, however, also submitted that as beneficiaries, or potential beneficiaries, of the 2009 Act, the third to tenth respondents were sufficiently "directly affected" by the challenge to the validity of the 2009 Act to represent the interests of such beneficiaries, or potential beneficiaries, in resisting that challenge. As we understood counsel for the Lord Advocate, he supported the admission of the third to tenth respondents, as respondents rather than interveners, on the basis of their being representative of asymptomatic pleural plaques claimants. In his efforts to address the obvious practical problem of numbers, were every beneficiary or potential beneficiary to be entitled to apply for admission as a respondent under Rule 58.8(2), counsel for the Lord Advocate and counsel for the third to tenth respondents pointed to the existence of a discretion under that rule and submitted that the Court could allow a representative sample of beneficiaries to become respondents. However, if the basis for entering the judicial review petition process to oppose the petition is thus one of some representational capacity, that basis is catered for by Rule of Court 58.8A and we do not consider that in so far as the third to tenth respondents are said to be representative of beneficiaries, or potential beneficiaries, of the legislation in issue, they should not have proceeded under that route, with the conditions of participation which it lays down.
[58] In all the circumstances we have reached the conclusion that Lord Uist erred in concluding that these respondents were entitled to be parties to the proceedings and we shall sustain the Dean of Faculty's submissions to that effect.
[59] Having concluded that the Lord Ordinary was correct to hold that, as well as having victim status in terms of article 34 of the Convention, the reclaimers had title and interest to pursue a challenge to the validity of the 2009 Act on what might be termed common law grounds, we turn next to the issue whether the validity of legislation passed by the Scottish Parliament may be questioned on grounds other than those for which express provision is made in the Scotland Act 1998
The challenge at common law Preface [60] The Court of Session has exercised a supervisory jurisdiction in Scotland probably from at least the time of the reconstitution of the Court by the College of Justice Act 1532: see Eba v Advocate General for Scotland [2010] CSIH 78 ; 2010 SLT 1047 at paragraph [34]. We were not referred to any case in which it had been sought to bring under review a statute of the pre-Union Scots Parliament, though at least one case may suggest that such review was not, at least on the merits of the legislation, open: in Stuart v Wedderburn (1627) Durie 301 it was said - "The said Act of Parliament [an Act of 1621] could not be drawn in dispute before the Session, if it was formally or well done or not, they not being judges thereto". However, the existence of the doctrine of desuetude demonstrates that in certain circumstances it was open to the Court to hold that statutes of that Parliament were no longer of legal effect. The position in England and Wales , where no such doctrine was admitted, appears to have been different. There is, however, little advantage in addressing further the pre-Union position since constitutional principles have moved on significantly since that time.
[61] The Scottish Parliament, brought into existence by the Scotland Act 1998, was created by the United Kingdom Parliament. It was thus created as a statutory body introduced into a legal landscape in which the Court of Session had supervisory jurisdiction over bodies operating in this part of the United Kingdom . The issues on this aspect of the reclaiming motion are whether the nature and powers of the Scottish Parliament are such that its legislation is immune from challenge before the Court of Session other than on the grounds of incompetence specifically provided for by the Scotland Act 1998; and, if its legislation is not so immune, on what grounds may that legislation be open to challenge.
Judicial review of UK legislation [62] In addressing these issues it is unnecessary to reach a concluded view as to whether statutes of the United Kingdom Parliament are subject to review by the superior courts on grounds of irrationality or otherwise. But, as there are at least some analogies between the Westminster and the Holyrood legislatures, it is appropriate to say something about that matter. The conventional view is that United Kingdom statutes are not reviewable in the courts as to their validity. This is in accordance with what is essentially the nineteenth century doctrine of the sovereignty of Parliament (Dicey - The Law of the Constitution (10 th Edition) - in effect adopted as applicable in Scotland: Mortensen v Peters (1906) 8 F 93, per Lord Justice General Dunedin at pp 100-1). In R ( Jackson) v Attorney General [2005] UKHL 56 ; [2006] 1 AC 262 Lord Steyn said at paragraph 102:
"The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom . Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion."
[63] These observations were obiter . However, Lord Hope of Craighead said:
"104. My Lords, I start where my learned friend, Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691 , 720. It is no longer right to say that its freedom to legislate admits of no qualification whatsoever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified."
He then referred to the effects of the European Communities Act 1972 and the Human Rights Act 1998 and continued:
"106. It has been suggested that some of the provisions of the Acts of Union of 1707 (6 Anne c11)(Scot c7) are so fundamental that they lie beyond Parliament's power to legislate. Lord President Cooper in MacCormick v Lord Advocate 1953 SC 396 , 411, 412 reserved his opinion on the question of whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law which Parliament is not free to alter. Nevertheless by expressing himself as he did he went further than Dicey, The Law of the Constitution, 10 th ed. (1959), p. 82 was prepared to go when he said simply that it would be rash of Parliament to abolish Scots law courts and assimilate the law of Scotland to that of England. In Gibson v Lord Advocate 1975 SC 136 , 144, Lord Keith too reserved his opinion on this question and as to the justiciability of legislation purporting to abolish the Church of Scotland. In Pringle, Petitioner 1991 SLT 330, the First Division of the Court of Session again reserved its position on the effect of the Treaty of Union in a case which had been brought to challenge legislation which introduced the community charge in Scotland before it was introduced in England . But even Dicey himself was prepared to recognise that the statesmen of 1707 believed in the possibility of creating an absolutely sovereign legislature which should yet be bound by unalterable laws: Thoughts on the Scottish Union, pp. 252-253, quoted by Lord President Cooper in MacCormick's case 1953 SC 396 , 412. So here too it may be said that a concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality."
[64] Baroness Hale of Richmond observed at paragraph 159:
"The concept of parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17 th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny."
[65] On the other hand Lord Carswell said at paragraph 168:
"Your Lordships have referred to two of those [constitutional] fundamental principles, the sovereignty or supremacy of Parliament and the conclusiveness of the Parliamentary role or the Speaker's certificate. The first is one of the pillars of the modern constitution of this country and has been so fully accepted by the courts and described by so many writers on the constitution from Dicey onwards that it needs no further elaboration. Both this principle and the second ... are judicial products of that carefully observed mutual respect which has long existed between the legislature and the courts. As a judge I am very conscious of the proper reluctance of the courts to intervene in issues of the validity of Acts of Parliament. I should be most unwilling to decide this or any other case in a way which would endanger that tradition of mutual respect. I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the state or to seek to frustrate the properly expressed wish of Parliament as contained in legislation."
[66] None of Lord Nicholls of Birkenhead , Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, or Lord Brown of Eaton-under-Heywood expressed views on this topic. Lord Bingham of Cornhill confined himself to saying, at paragraph 27: "The authority of Pickin v British Railways Board [1974] AC 765 is unquestioned, and it was there very clearly decided that 'the courts in this country have no power to declare enacted law to be invalid' (per Lord Simon of Glaisdale, at p 798)."; his views on the sovereignty of Parliament have been trenchantly expressed extra-judicially - Bingham, The Rule of Law , Chapter 12.
[67] There can accordingly be seen to be an as yet unresolved issue at the highest judicial level as to whether an Act of the United Kingdom Parliament could, in any circumstances, be open to challenge in the courts. It is clear, however, that even Lord Steyn would entertain such a challenge only in exceptional constitutional circumstances. There can by no question of reviewing such an instrument on "ordinary" judicial review grounds - such as those identified in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 . Had the present case involved a challenge to a United Kingdom statute on such grounds, it would, in our view, have been bound to fail.
The nature and powers of the Scottish Parliament [68] The nature and powers of the Scottish Parliament are to be ascertained from the terms of the Scotland Act 1998. Under section 28 that Parliament is empowered, subject to section 29, to "make laws" (subsection (1)) which are to receive Royal Assent (subsection (2)). The validity of an Act is not affected by any invalidity in the proceedings of the Parliament leading to its enactment (subsection (5)) and every Act is to be judicially noticed (subsection (6)). The competence of the Scottish Parliament to make laws is restricted by section 29, an Act of that Parliament not being law so far as any provision of it is outside the legislative competence of the Parliament. Subsection (2) of section 29 provides for what is outside that competence. Of the five sub-paragraphs of that subsection two are for present purposes of particular significance, namely -
"(b) It relates to reserved matters"
and
"(d) It is incompatible with any of the Convention rights or with Community law".
[69] The provisions of section 28 have the hallmarks of primary legislation: the powers to make "laws" (not rules, regulations, orders or by-laws); each Act is to receive the Royal Assent; and subsection (5) (validity of an Act not affected by any invalidity in the proceedings) is an echo of what applies in respect of Westminster legislation, though this is an immunity conferred by the United Kingdom Parliament after debate. Subsection (6) is also a provision which required United Kingdom legislation; it is the equivalent of section 3 of the Interpretation Act 1978.
The argument for exclusion of all common law review grounds [70] The contention for the Lord Advocate (adopted and elaborated by the third to tenth respondents) is, in summary, that the law-making power or competence of the Scottish Parliament is constrained only by section 29, which is exhaustive of matters outside competence. There is, so runs the argument, no room for any challenge at common law. This contention requires careful consideration.
[71] The Scottish Parliament is a statutory body introduced, as we have said, into the Scottish legal landscape by an Act of the Parliament at Westminster . In West v Secretary of State for Scotland the Lord President (Hope), in delivering the Opinion of the Court, formulated at pages 412-3 certain propositions respecting the supervisory jurisdiction of the Court of Session. These included:
"1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.
The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires."
While the case was concerned with a decision by an agency of executive government (the Scottish Prison Service), the propositions were clearly formulated to deal generally with the scope of the Court's jurisdiction. There is no restriction on the nature of the body whose Acts may be subject to review. The width of the jurisdiction is reflected in the opening words of Clyde & Edwards, Judicial Review where it is said that the work -
"is concerned with the power of a Supreme Court to ensure that all those vested with a legal authority exercise that authority lawfully and properly. Historically, the supervisory jurisdiction of the Court of Session has been the means by which the supreme court in Scotland has achieved this objective." (paragraph 1.01).
At paragraph 7.23 the learned authors say:
"While the 'devolution issue' identified by Schedule 6, para 1(a) [to the Scotland Act 1998] concerns the competence of the Parliament to pass Acts, it may be that grounds other than strict illegality will be available as grounds on which Acts of the Scottish Parliament are challengeable. It may be thought that the statutory source of the Parliament's authority means that the fairness or irrationality (or proportionality) of a measure might be open to question. But it is likely that occasion to resort to most other grounds of review will be rare. At least in regard to assessing the irrationality of Acts of the Scottish Parliament, respect will require to be given to the fact of their having been considered by the Scottish Parliament in a way corresponding to the approach which the courts take in relation to judicial review of subordinate legislation which has passed before the UK Parliament."
Reference is made in a footnote to Edinburgh District Council v Secretary of State for Scotland 1985 SC 261 and Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 . The views expressed in paragraph 7.23 are expressed tentatively. But they at least contemplate the possibility that common law bases for challenge of the Acts of the Scottish Parliament may exist.
[72] In Whaley v Lord Watson 2000 SC 340 the Lord President (Rodger) at p 348 observed:
" The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which - however important its role - has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law."
Lord Prosser at pp 357-8 observed:
"The contention that the court did not have jurisdiction to deal with the issues raised in this case was one I found hard to grasp. As I understood the submissions, the argument seemed to rest upon some broad view that since the Scottish Parliament was a parliament, rather than for example a local authority, the jurisdiction of the courts must be seen as excluded, as an unacceptable intrusion upon the legislative function which belonged to Parliament alone. A variant of this argument appeared to be that if the court's jurisdiction was not actually excluded as a matter of law, the court should nonetheless be slow or hesitant or reluctant or unwilling to use the jurisdiction which it had, in order to avoid an undesirable intrusion on Parliament's freedom in relation to legislation. Both forms of argument appear to me to be entirely without foundation. If and in so far as a parliament may have powers which are not limited by any kind of legal definition, there is no doubt scope for concepts of 'sovereignty', with the courts unable to enforce boundaries which do not exist. But if and in so far as a parliament and its powers have been defined, and thus limited, by law, it is in my opinion self-evident that the courts have jurisdiction in relation to these legal definitions and limits, just as they would have for any other body created by law. If anything, the need for such a jurisdiction is in my opinion all the greater where a body has very wide powers, as the Scottish Parliament has: the greater the powers, the greater the need to ensure that they are not exceeded. But the jurisdiction of the courts and the legal definition of the body seem to me to be merely two sides of the same coin. Faced with the suggestion that the courts might abstain from exercising a jurisdiction which they have, allowing the Parliament perhaps to exercise power beyond its legal limits, from a fear that enforcement of those limits might be seen as stopping Parliament from doing what it wanted to do, I am baffled: a defined parliament is there to do whatever it wants, but only what the law has empowered it to do. In the odd, and perhaps unsatisfactory context of 'sovereign' or undefined powers, the court may be faced with problems; but these are very precisely problems of a kind which do not arise, and can afford no guidance, where the issue is one of law, and jurisdiction is its inevitable counterpart. The nature and function of the Parliament, and of any particular provisions, will of course be matters which must be taken into account, whenever the courts in exercising their jurisdiction require to interpret and apply the provisions which the law has made in relation to the Parliament. But that is a quite different matter."
[73] These observations were made in relation to a determination by the standards committee of the Scottish Parliament that a member of that Parliament had not breached article 6 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999, made by the United Kingdom Parliament under section 129(1) of the Scotland Act 1998. While it was thus concerned with the justiciability of issues arising procedurally in Parliament, rather than with the validity of its enactments, these dicta emphasise that the Scottish Parliament, like any other body in Scotland , is subject to the general law. They are not inconsistent with a proposition that Acts of the Scottish Parliament are, in principle, amenable to the supervisory jurisdiction of the Court of Session.
[74] Counsel for the third to tenth respondents emphasised that the Court itself was subject to law; it should not arrogate to itself powers which it did not have under law. The courts in this country have, of course, always been cautious in their relationship with the legislature, being anxious not to stray beyond their legitimate bounds. This is not, as Mr O'Neill reminded us, a "juristocracy". But, as Lord Steyn said in R (Jackson) v Attorney General at paragraph 102 in relation to the supremacy of the United Kingdom Parliament, that concept "is a construct of the common law. The judges created this principle". The scope of the supervisory jurisdiction of the Court of Session, and in particular whether it extends to the review of Acts of the (statutory) Scottish Parliament is likewise a matter, subject to any express or clearly implied provision to the contrary, for the courts of law, using due restraint, to decide. There is, at least, no express statutory provision which altogether excludes such review.
[75] We appreciate that there is an issue as to where, as it were, one starts; or what question one asks. Does one, taking the Scotland Act 1998 as a "constitutional" statute, simply ask what limitations that statute places on legislative competence, so that, unless restrictions based on the common law are expressly or by implication provided for, there are no such restrictions; or does one start with the Court of Session as a Supreme Court charged with a privative supervisory jurisdiction over public and other bodies (including statutory bodies) in Scotland and ask the question whether there is anything in the Scotland Act 1998, a statute establishing a particular statutory body, which renders the body so established immune from that jurisdiction?
[76] One might have thought that guidance on this question could be obtained from experience with other legislatures established by the Westminster Parliament. Counsel for the Lord Advocate indeed referred us in his written argument to a number of cases in which observations had been made in the Privy Council on statutes of that Parliament conferring powers on legislatures in what is now the Commonwealth. These were The Queen v Burah (1878) 3 App Cas. 889 at pp 904-5, Hodge v The Queen (1883) 9 App Cas. 117 at p 132, Union Colliery Company of British Columbia v Bryden [1899] AC 580 , per Lord Watson at p 585 and Thakur Jagannath Baksh Singh v The United Provinces [1946] AC 327 at p 337. But in none of these cases, which all in any event precede modern developments in judicial review, was any issue raised of striking down legislation on common law grounds. Like the Lord Ordinary we find these unhelpful. Nor do we consider it of assistance to learn that there is no prior record of any such attempt having been made.
[77] The Lord Ordinary approached the issue as being one of whether the traditional common law ground of rationality was excluded (paragraphs [125] - [141]). He concluded that such a ground of challenge was not excluded. In that respect he differed from the opinion expressed by Lord Nimmo Smith in Adams v Advocate General , especially at paragraph [63]. (The challenge at common law in Adams v Advocate General was not pursued in the Inner House - see 2004 SC 665 .) The submission of counsel for the Advocate General was that the approach of the Lord Ordinary in the present case was correct.
[78] The Lord Ordinary found support for his approach in the reasoning of Lord Hope in Somerville v Scottish Ministers [2007] UKHL 44 ; 2008 SC (HL) 45 . At paragraphs [17], [18] and [28] his Lordship proceeded on the basis that remedies would be available in domestic law to deal with Acts outside competence - and so these remedies did not require to be spelt out in the statute. The Court had existing powers; it was a given that they were available for exercise where appropriate. But these passages are consistent with his Lordship having in mind remedies available for breach of the restrictions imposed by section 29. They do not, in our view, significantly assist in resolution of the present issue. And, although Lord Scott of Foscote, at paragraph [77], speaks of a challenge "on the ground that it was outside devolved competence or otherwise ultra vires " (emphasis added), that is consistent with his Lordship having in mind acts by a member of the Scottish Executive or subordinate legislation and not necessarily enactments of the Parliament. Nor are we persuaded that assistance is to be found in section 54 of the Scotland Act or in Lord Hope's treatment of it in paragraph [14] of Somerville v Scottish Ministers . The fact that "devolved competence" is defined identically for legislation and for executive acts does not, in our view, mean that both are challengeable on the same grounds.
[79] We were referred to a number of authorities in which consideration had been given to executive instruments which had been placed before the Westminster Parliament. In Nottinghamshire County Council v Secretary of State for the Environment the House of Lords had to consider the basis on which a court could subject to judicial review a report (giving certain guidance on local authority finance) laid before the House of Commons by the Secretary of State pursuant to the Local Government, Planning and Land Act 1980. The local authorities bringing the proceedings contended that the result which the guidance imposed on them was so disproportionately disadvantageous when compared with its effects on other local authorities that it was a perversely unreasonable exercise of the power conferred by the statute upon the Secretary of State. Reliance was placed by them on the judgment of Lord Greene in Associated Provincial Picture Houses Limited v Wednesbury Corporation . At p 247 Lord Scarman observed:
"For myself, I refuse in this case to examine the detail of the guidance or its consequences. My reasons are these. Such an examination by a court would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith, or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of
his senses. The evidence comes nowhere near establishing any of these propositions."
At p 248 he continued:
"If, as your Lordships are holding, the guidance was based on principles applicable to all authorities, the principles would have to be either a pattern of perversity or an absurdity of such proportions that the guidance could not have been framed by a bona fide exercise of political judgment on the part of the Secretary of State. And it would be necessary to find as a fact that the House of Commons had been misled: for their approval was necessary and was obtained to the action that he proposed to take to implement the guidance.
In my judgment, therefore, the courts below acted with constitutional propriety in rejecting the so called ' Wednesbury unreasonableness' argument in this case."
At pp 250-1 he added:
"The courts can properly rule that a minister has acted unlawfully if he has erred in law as to the limits of his power even when his action has the approval of the House of Commons, itself acting not legislatively but within the limits set by a statute. But, if a statute, as in this case, requires the House of Commons to approve a minister's decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute (as your Lordships, I understand, are convinced that it does in the present case), it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges' role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained; for Parliament has enacted that one of its Houses is responsible. Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power."
The other members of the Appellate Committee agreed.
[80] In R v Environment Secretary, ex parte Hammersmith London Borough Council [1991] 1 AC 521 the House of Lords was again concerned with a report (in relation to the capping of local authority expenditure) formulated by the Secretary of State, submitted to the House of Commons and approved by it. Lord Bridge of Harwich, who gave the leading speech, cited at length from Lord Scarman's speech in Nottinghamshire County Council . At page 597 he added:
"The restriction which the Nottinghamshire case [1986] AC 240 imposes on the scope of judicial review operates only when the court has first determined that the ministerial action in question does not contravene the requirements of the statute, whether express or implied, and only then declares that, since the statute has conferred a power on the Secretary of State which involves the formulation and the implementation of national economic policy, and which can only take effect with the approval of the House of Commons, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take and it is in the political forum of the House of Commons that they are properly to be debated and approved or disapproved on their merits. If the decisions have been taken in good faith within the four corners of the Act, the merits of the policy underlying the decisions are not susceptible to review by the courts and the courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable."
The other members of the Appellate Committee (which included Lord Jauncey of Tullichettle) agreed.
[81] Lord Jauncey had earlier as a Lord Ordinary in the Court of Session dealt with a similar issue in Edinburgh District Council v Secretary of State for Scotland . There the Secretary of State had in furtherance of statutory powers made an order (again in relation to local government finance) which had been laid before Parliament. It was debated in the House of Commons but a prayer to annul it was not moved. Lord Jauncey, having considered arguments on Wednesbury principles, said at p 275:
"Parliament, however, is well able to determine whether a Minister's decision has been taken fairly or rationally. In these circumstances I conclude that the courts can only hold to be ultra vires a statutory instrument which has been laid before and considered by Parliament where that instrument is patently defective in that it purports to do what is not authorised by the enabling statute or where the procedure followed in making that instrument departed from the requirements of the enabling statute."
On advising the reclaiming motion the Lord Justice Clerk (Wheatley) said at p 280:
"The Lord Ordinary proceeded on the basis that the court could only hold to be ultra vires a statutory instrument which had been laid before and considered by Parliament when the statutory instrument was patently defective, which this one was not. In my opinion the Lord Ordinary was perfectly entitled to proceed on that basis and reach that result in the circumstances here present."
Lord Robertson said at p 284:
"I agree with the Lord Ordinary that the courts can only hold to be ultra vires a statutory instrument which has been laid before and considered and ratified by Parliament where that instrument is patently defective in that it purports to do what is not authorised by the enabling statute or where the procedure followed in making that instrument departed from the requirements of the enabling statute. Illegality in that sense, as I have already mentioned, has not been shown in this case, and that argument fails."
At p 285 he referred to a passage in the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service at p 411, in which his Lordship had found it difficult to envisage a decision under the royal prerogative that could be open to attack on the ground of Wednesbury unreasonableness and added:
"In my opinion this is a fortiori in a policy decision (such as is in the present case) which has been affirmed by statutory instrument ratified by Parliament."
Lord Dunpark appears to have dealt with the "irrationality" argument on its merits without reference to the parliamentary procedure.
[82] It may be noted that the test formulated in Edinburgh District Council v Secretary of State for Scotland has not been followed in England - see Howker v Secretary of State for Work and Pensions [2003] ICR 405, especially per Peter Gibson LJ at paragraph 34.
[83] None of these authorities is directly in point. The English cases in the House of Lords were concerned with reports which were approved by the Westminster Parliament, the Scottish case with a statutory instrument which had been laid before that Parliament and debated by it without any annulment motion being made. Although the English cases would admit judicial review on very limited grounds, the Lord Ordinary and the majority of the members of the Second Division in the Edinburgh District Council case would admit it even more narrowly. Lord Jauncey's subsequent concurrence in Hammersmith may suggest a modification of his view. His earlier view is not based on any cited authority. However that may be, all were concerned with cases in which the imprimatur of the sovereign Westminster Parliament had been given to the instrument in question. The speeches delivered in the Nottinghamshire and Hammersmith cases are, however, interesting in that they signal, for instruments of the kind there discussed, a stricter test than would be appropriate for review if the instrument had not had Westminster endorsement. Where, as in the case of the Holyrood Parliament, the legislature is not sovereign but the instrument in question is primary legislation by it, that stricter test may provide some guidance to the appropriate approach.
[84] Mention must be made in this connection of R (Javed) v Home Secretary [2001] EWCA Civ 789 ; [2002] QB 129 . The issue in that case involved the designation by the Home Secretary (under asylum legislation) of Pakistan as a country in respect of which there was "in general no serious risk of persecution". The draft order had been subject to short debates in both Houses of Parliament and approved by both Houses by the affirmative resolution procedure. In the Court of Appeal counsel for the Home Secretary argued that the scope of review by the courts was subject to the same restrictions as had been referred to in the Nottinghamshire and Hammersmith cases. The Master of the Rolls (Lord Phillips of Worth Matravers) cited with approval judicial dicta in two other cases. The first (at paragraph 47) was by Mustill LJ in R v Secretary of State for the Environment , ex parte Greater London Council , 3 April 1985 (unreported), where his Lordship had, in relation to Wednesbury unreasonableness, said, apparently delivering the opinion of the court:
"In this rather uncertain state of affairs, we think it preferable to tackle the problem from another angle, by asking this question: can it be inferred that Parliament, by making an affirmative resolution a condition precedent to the exercise of the power, has intended to make the House of Commons the sole judge of whether the decision expressed in the draft order is too unreasonable to be allowed to stand? After careful consideration, we have come to the conclusion that the answer, in theory, is No. In our judgment, the right of veto created by section 4(5) is a safeguard addition to and not a substitution for the power to judicial review. The debate in the House on affirmative resolution and the investigation by the court of a Wednesbury complaint are of a quite different character and are directed towards different ends; the two are complementary. Having stated this answer in point of theory, we continue at once to say that in practice the grant of judicial review on the grounds of unreasonableness is likely to be rare, and probably very rare, when the decision is subject to affirmative resolution, particularly in a field such as the present, where the decision is a matter of judgment and not of mechanical reasoning and is founded on political and economic premises which are implicit in the enabling legislation. Nevertheless, we do not find it possible to say that every application for such relief must be dismissed out of hand for want of jurisdiction."
The other dictum to which the Master of the Rolls gave his approval (at paragraph 50) was by Auld LJ in O'Connor v Chief Adjudication Officer [1999] ELR 209 at pp 220-1 where his Lordship said:
"Irrationality is a separate ground for challenging subsidiary legislation and is not characterised by or confined to a minister's deceit of Parliament or having otherwise acted in bad faith. That means irrationality in the Wednesbury sense. Counsel have referred to the difficult notion of 'extreme' irrationality sometimes suggested as necessary before a court can strike down subsidiary legislation subject to parliamentary scrutiny, citing Lord Scarman [in the Nottinghamshire case]. He spoke at page 247G of ".... the consequences ... [being] so absurd that ... [the Secretary of State] must have taken leave of his senses", a form of words which the other members of the Appellate Committee agreed. They also referred to Lord Bridge 's reference [in the Hammersmith case], to 'manifest absurdity'. It is wrong to deduce from those dicta a notion of "extreme" irrationality. Good old Wednesbury irrationality is about as extreme a form of irrationality as there is. Perhaps the thinking prompting the notion is that in cases where the minister has acted after reference to Parliament, usually by way of affirmative or negative resolution procedure, there is a heavy evidential onus on a claimant for judicial review to establish the irrationality of a decision which may owe much to political, social and economic considerations in the underlying enabling legislation. Often the claimant will not be in a position to put before the court all the relevant material bearing on legislative and executive policy behind an instrument which would enable it with confidence to stigmatise the policy as irrational. Often too, the court, however well informed in a factual way, may be reluctant to form a view on the rationality of a policy based on political, social and/or economic considerations outside its normal competence. That seems to the approach of Mustill LJ [in R v Secretary of State for the Environment, ex p Greater London Council , 3 April 1985 ]."
[85] The Court of Appeal in Javed distinguished the Nottinghamshire and Hammersmith cases on the ground that in those cases Lords Scarman and Bridge were respectively focussing upon a question of justiciability rather than jurisdiction (paragraph 49). It also held that, on analysis, the challenge made in the case before it was as to the legality of the order rather than to its rationality (paragraph 57). Neither House of Parliament had been required to rule upon that issue of legality (paragraph 58). In the event it held that the Secretary of State's decision was irrational.
[86] At paragraph 49 the Master of the Rolls noted that the subject matter of the legislation and the power in both the Nottinghamshire and Hammersmith cases was "at an extreme end of the spectrum". He added:
"In each case the decisions on how to exercise the statutory power turned on political and economic considerations to be evaluated by the minister and Parliament, whose rationality could not be measured by any yardstick available to the court. In such circumstances the statement that there was no scope for an attack on the exercise of the Secretary of State's powers on grounds of rationality in the absence of bad faith or manifest absurdity was no more than a statement of practical reality. It cannot be treated as a proposition of law applicable to any order subject to affirmative resolution."
Acts of the Scottish Parliament - legislation sui generis ? [87] We, like the Lord Ordinary (paragraph [142]), are inclined to agree with Lord Nimmo Smith 's description - at paragraph [62] of his Opinion in Adams v Advocate General - of legislation enacted by the Scottish Parliament as sui generis . Notwithstanding its classification for the purposes of the Human Rights Act 1998 as "subordinate legislation" (section 21(1)), it is "law" essentially of a primary nature. The processes which lead to its enactment include parliamentary procedure which involves scrutiny at various stages by democratically elected representatives who ultimately vote on whether the Bill in question should be enacted and, if so, in what terms. Having passed through these stages the Bill then receives the Royal Assent. These procedures, taken together, distinguish legislation so enacted from acts or instruments subject to judicial review on traditional grounds, including from executive acts of the Scottish Ministers and from subordinate legislation - even subordinate legislation or other instruments which have been approved by the Westminster Parliament. They are much more proximate to Acts passed at Westminster . Other features of the Scotland Act support that proximity: the exclusion of procedural challenge (section 28(5)) and the provision for judicial notice (section 28(6)). On the other hand, there is nothing, in our view, either expressly or impliedly in the Scotland Act which gives to enactments of the Scottish Parliament the status of Acts of the Parliament of the United Kingdom . That is not to ignore the significance of the Scotland Act as of real constitutional importance. But it is to recognise that, however wide-ranging the powers conferred on the Scottish Parliament, its establishment did not involve the ceding to it of "sovereignty" (whatever precisely that may mean) even within its restricted statutory field of competence: its legislation is open to abrogation or supersession by Acts of the Westminster Parliament (section 28(7)).
[88] The recognition that Acts of the Scottish Parliament are sui generis calls, in our view, for a new approach to these novel instruments. The traditional grounds of common law judicial review are not, without modification, apt for them. It is acknowledged that, while they are open to review on the grounds of "illegality" (by reason of infringement of the restrictions imposed by section 29), they are not apt for review on the ground of "procedural irregularity" (section 28(5)). The notion of "irrationality", even in the extreme sense of being "so absurd that [the legislature] must have taken leave of [its] senses" is not, in our view, apt - at least in the context of the legislation here under discussion. The Dean of Faculty maintained, among other arguments, that the 2009 Act was irrational because it involved the "giving of money to individuals with a benign and asymptomatic condition" and "the placing of responsibility for paying such compensation" partly on private parties (the insurers of certain employers of affected individuals) and partly on public funds (local authorities and government departments). But decisions of that kind - the conferring of benefits on those who are perceived to be deserving and the manner of funding of such benefits - are essentially political questions which, absent any infringement of a Convention right, a court cannot and should not enter upon. If they are ill-conceived, it is for the Parliament to think again - or conceivably for the United Kingdom Parliament to trump.
[89] That does not mean, in our view, that there are no circumstances in which the Court of Session could strike down on common law grounds legislation of the Scottish Parliament. The three categories identified by Lord Diplock in Council of the Civil Service Unions v Minister for the Civil Service (essentially for review of administrative action) are not exhaustive. A fourth category ("proportionality") was contemplated. In the Nottinghamshire case Lord Scarman spoke also of "bad faith" and "improper motive". These latter grounds are not, in our view, truly aspects of irrationality but of deliberate misuse of power. The restriction which Lord Scarman formulated (and in which all the other members of the Appellate Committee concurred) was endorsed by Lord Bridge (and all his colleagues) in Hammersmith . If a case were to be made out on such grounds the court might well hold itself entitled to intervene. Likewise, if the Scottish Parliament were to take an exceptional measure of the kind contemplated by Lord Steyn in R (Jackson) - such as a purported abrogation of the citizen's right to challenge unlawful executive action by judicial review - we do not exclude the possibility that any such enactment would be challengeable at common law. We do not construe Lord Hope's observations in Whaley v Lord Advocate [2007] UKHL 53 ; 2008 SC (HL) 107 at paragraphs [6] and [7], when read in the context of the international obligations there under discussion, as negativing such a possibility. The circumstance that any such enactment might also be challengeable on Convention grounds does not exclude that possibility.
The common law challenge in the present petition [90] No such exceptional case, however, is made here. Something was sought to be made of the letter dated 28 November 2008 from Mr Paul Allen, an official in the Constitution, Law and Courts Directorate, to Thompsons, the full text of which was set out earlier in this Opinion (at para [22]). This was a response to a proposal by Thompsons that certain amendments be made to the Bill then before Parliament. The letter suggested that these amendments "could place a significant barrier in the way of many potential claimants" because they might give rise to an argument that, while an employer might be liable, the claim would not be covered by his insurance policy. The letter went on to suggest that it had been unfortunate that a meeting (between officials and representatives of Thompsons) could not take place before the relative amendments were lodged "especially as the process of disclosing our concerns to the Committee may also result in those concessions being drawn to the attention of those who may wish to utilise them in opposing claims for compensation, contrary to our intention and yours". In the event the amendments were aired before the Committee (by Mr Bill Butler, MSP) but in the end, after an explanation by the Minister, Fergus Ewing, MSP, not moved. What Thompsons and the officials were anxious to ensure was that the legislation as enacted was such as would give to affected individuals an effective remedy; this, particularly in a situation where many relative employers had over the years gone out of business, meant ensuring that their insurers would meet these claims. That the intention of the legislation was to provide an effective remedy, including a remedy where appropriate against the insurer of an employer, was manifest from the outset and throughout the Parliamentary process. It was why insurers and their representatives were invited to give evidence to the Committee and why they did so. While Mr Allen was no doubt reluctant about hostages being given to fortune, there is no basis for any contention that the Parliament was at any stage misled or misinformed about the intendment of the legislative proposals. Section 4(2) of the 2009 Act (the provision which particularly caught the insurers) was in identical terms to section 4(2) of the Bill as presented.
[91] We have already adverted (para [84]) to the argument advanced by the Dean of Faculty to the effect that the policy underlying the 2009 Act was irrational. But in addition to what we said earlier, something must be said about the legal context in which Parliament sought fit to impose upon the insurers of negligent employers liability to make compensation for pleural plaques. In Rothwell at paragraphs [3] to [6] Lord Hoffmann sets out the earlier rulings in the English courts: Church v Ministry of Defence (1984) 134 NLJ 623, Sykes v Ministry of Defence (1984) 134 NLJ 783 and Patterson v Ministry of Defence (29 July 1986, unreported). All were at first instance in the High Court, the first being by Peter Pain J, the second by Otton J and the last by Simon Brown J (as he then was). In each of these cases the judge, having heard submissions that there was no compensatable damage, rejected these submissions and awarded damages - £1,500 in each of Church and Sykes and £1,250 (as provisional damages) in Patterson . In that last case reference was made to an obiter observation by Rose J in Morrison v Central Electricity Board (unreported) where the judge had opined that there was no damage which could attract compensation. In Patterson Simon Brown J held that the material damage consisted of "the symptom-free pleural plaques, the risk of the pleural thickening deteriorating with the consequences that I have mentioned [breathlessness and reduced lung function], the risk of mesothelioma developing, and the understandable worry attendant upon these various matter(s)". None of these cases was appealed. As Lord Hoffmann observed in Rothwell at paragraph [6], following upon these three successful actions claims by those with pleural plaques were regularly settled on the basis that pleural plaques were actionable injury. That remained the case until Rothwell .
[92] The issue of whether pleural plaques were actionable injury was never litigated to a conclusion in Scotland . Shortly after judgment was given in the House of Lords in Rothwell Lord Uist followed it in Wright v Stoddart International plc (No.2) . As the Lord Ordinary finds at paragraph [9] of his Opinion, following their (for them adverse) experience in those three English cases in the mid-1980s insurance companies throughout the United Kingdom had in practice conceded liability to pay damages in pleural plaques claims. In a number of reported decisions in Scotland part of the complaint made by the pursuer was that he had developed pleural plaques. The first of these was Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517 (decided in August 1995), where the Lord Ordinary (Prosser), having held that the pursuer's claim was not time barred, made certain observations about the legal significance of "separate diseases or impairments of physical condition", one of which was arguably pleural plaques. He stated "... it appears to me upon the evidence that the plaques, if to be regarded as a disease or impairment at all, are sufficiently distinct from either pleural thickening or asbestosis as to qualify as a 'separate' disease or impairment". In Gibson v McAndrew Wormald & Co 1998 SLT 562 the pursuer claimed damages for (1) as yet symptomless pleural plaques, (2) the risk of developing mesothelioma and (3) anxiety and depression by a realisation of the prospect that he might develop a fatal disease of his lungs. Liability was admitted by the defenders, the only issue being whether the quantum of damages should be tried before a jury or before a judge sitting alone. A number of arguments were presented for withholding the case from jury trial but it is not clear from these arguments or otherwise from the report on what basis liability was admitted. The Lord Ordinary (MacLean) made reference in his Opinion to Sykes v Ministry of Defence and it may be that the admission of liability proceeded on the "aggregation" theory which formed the basis of the decision in that case. Liability was also admitted, perhaps on the same basis, in Nicol v Scottish Power 1998 SLT 822, a decision of Lord Nimmo Smith . In McKenzie v Barclay Curle Ltd 2002 SLT 649 Lady Paton awarded damages, liability having been admitted for pleural plaques, which it was noted "made some contribution towards loss of lung function"(paragraph [47]) - , pleural thickening and asbestosis together with real risks of developing mesothelioma or cancer and depression and fear brought about by the asbestos-related conditions. In Lambie v Toffolo Jackson Ltd (in liquidation) 2003 SLT 1415 the issue before the First Division was whether the Lord Ordinary (McEwan) had been correct to dismiss the action on the ground of limitation. The pursuer sought primarily provisional damages on the basis that as a result of exposure to asbestos in the employment of the defenders he had developed bilateral pleural plaques. He also averred that there was a risk of serious deterioration of his health through the contraction of asbestosis, diffuse bilateral pleural thickening, asbestos-related lung disease or mesothelioma. The matter is somewhat complicated by the circumstance that at one stage a radiological report suggested that the pursuer had a small amount of pleural thickening; but the whole discussion on limitation proceeded on the basis that the development of pleural plaques constituted damage for which compensation might be awarded. The defenders did not resist the claim on the basis that they did not constitute damage for which compensation might be payable.
[93] Accordingly, although at no stage was the issue of whether the development of pleural plaques, with or without other factors such as the risk of the development of more serious asbestos-related conditions or anxiety about the risk of such development, tested in the Scottish courts, defenders (and presumably their insurers) proceeded for at least a decade - and possibly considerably longer - on the basis that pleural plaques were a condition which called for compensation. No doubt that attitude was influenced by their experience in the High Court in England in the mid-1980s. It may also have been influenced by commercial considerations - if, as the Dean of Faculty informed us, without contradiction, the number of such claims in earlier years was small and the claims were relatively low in value. It seems clear that the Scottish Parliament, in determining to pass the 2009 Act, took into account that for a significant period of time employers - in reality their insurers - had accepted that the development of pleural plaques was a condition for which compensation was payable and that what it was seeking to do by the enactment was to ensure that, in Scotland, compensation would continue to be paid. The Dean of Faculty described this as a "myth of continuity" but in the real world there was nothing mythological about it. The theory of the law is that the decision of the House of Lords in Rothwell authoritatively established that pleural plaques, even on the basis of the "aggregation" theory, were not and never had been compensatable in England and Wales . Having regard to the common principles of the law of reparation for personal injuries in that and in this jurisdiction, it can be said with confidence that it is highly likely that, if the matter were to be tested in a Scottish case in identical circumstances, the same determination would at common law result. But in practical terms there was, for claimants and for insurers alike, a quite different regime at common law before and after Rothwell . In deciding that, notwithstanding Rothwell, in Scotland pleural plaques should be, and have always been, a condition for which compensation should be paid and that, in effect, the insurers of negligent employers would be liable to meet claims for that compensation, the Scottish Parliament was, as a matter of political judgment, entitled to take into account that such insurers had for a significant period accepted such liability. In contracting with employers to indemnify them against claims by their employees, and in accepting premiums as consideration, the insurers took the risk that the law would develop, or even change, with a consequence that their exposure was greater (or less) than might have been envisaged when the risks were placed. Although the House of Lords was unanimous in Rothwell , there had been a dissent in the Court of Appeal and the judge at first instance had been in the claimants' favour. That was all against the background of the first instance cases in the mid-1980s. Although the reasoning of the House of Lords may, in retrospect at least, seem compelling, it is not inconceivable that the decision might have gone the other way.
[94] Even if irrationality were a sufficient basis on which to challenge the validity of an enactment of the Scottish Parliament (which, in our view, for the reasons already given, it is not), we consider that, in particular against the background to which we have just referred, it has not been demonstrated that the 2009 Act was irrational.
The Government of Wales Act 2006 [95] We were favoured with a Written Submission by the Counsel General to the Welsh Assembly Government, as intervener. The submission was directed largely to the Government of Wales Act 2006, the relevant provisions of which are not yet in force, but which, if brought into force, will supersede to a significant extent the Government of Wales Act 1998. Part 4 of the 2006 Act provides for "Acts of the Assembly". Section 107 provides:
"(1) The Assembly may make laws, to be known as Acts of the National Assembly for Wales ... (referred to in this Act as 'Acts of the Assembly').
(2) Proposed Acts of the Assembly are to be known as Bills; and a Bill becomes an Act of the Assembly when it has been passed by the Assembly and has received Royal Assent.
...
(5) This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales ."
Section 108 provides:
"(1) Subject to the provisions of this Part, an Act of the Assembly may make any provision that could be made by an Act of Parliament.
(2) An Act of the Assembly is not law so far as any provision of the Act is outside the Assembly's legislative competence."
[96] There are certain parallels between these provisions and sections 28 and 29 of the Scotland Act 1998 - although there is no equivalent in that Act to section 108(1) of the 2006 Act. The detailed observations by the Counsel General on the 2006 Act reflect many of the submissions made by Mr Dewar and Mr O'Neill on the parallel provisions in the Scotland Act.
[97] It is not for this court to offer any definitive interpretation of the meaning and effect of the 2006 Act. That is for the High Court of England and Wales in the event of there being any challenge at common law to any Act passed by the National Assembly of Wales. Any such determination will require to be made not only having regard to the terms of the 2006 Act but also to the jurisdiction of the High Court in matters of judicial review. We intend no discourtesy to the detailed and careful observations made by the Counsel General if we do not set out these observations in details. Their burden is that the 2006 Act sets out comprehensively the area of the Assembly's legislative competence, leaving no scope for the imposition of additional limitations on the exercise of its legislative power derived from any common law concepts; the 2006 Act provides "a self-contained code governing the scope of the judicial review of the exercise of the Assembly's legislative powers". Significant emphasis is placed in that respect on section 108(1) of the 2006 Act. It may be that the express empowering of the Assembly to "make any provision that could be made by an Act of Parliament" tends to equiparate the Assembly, subject to express statutory restrictions, to the Westminster Parliament. We express no concluded view on this point, though if it tends to support the proposition that the 2006 Act provides a "self-contained code", there is no equivalent in the Scotland Act to that provision. Nor was there in the devolution settlement made for Wales in 1998.
[98] While we found the Counsel General's observations to be interesting and helpful, it did not persuade us that Acts of the Scottish Parliament are in all circumstances free from challenge in common law grounds in the Court of Session. But, as we have said, the possible grounds of challenge are, in our view, exceptionally limited.
ECHR - Article 1 Protocol 1 Introduction [98] We turn now to consider the other basis upon which the reclaimers' challenge the validity of the 2009 Act, namely the contention that it infringes their rights under A1P1 (i.e. Article 1 of Protocol 1 to the European Convention on Human Rights). For ease of reference we set out again the terms of that article:
" Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
General observations [99] It is convenient to begin with certain general observations on A1P1. It was not disputed that in its interpretation of those provisions the ECtHR has stated that it contains three rules; the first sentence enunciates a general rule for the protection of property, whereas the remaining provisions address more specifically (a) deprivation of ownership of property and (b) controls upon the use of property. Thus in paragraph 61 of its judgment in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 the ECtHR said:
"That Article [ scilicet A1P1] comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph."
That analysis of the text has been re-iterated in subsequent cases, such as James v United Kingdom in which the ECtHR stated at paragraph 37 of its judgment that:
"[A1P1] in substance guarantees the right of property. In its judgment of 23 September 1982 in the case of Sporrong and Lönnroth the Court analysed Article 1 as comprising 'three distinct rules': the first rule set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The Court further observed that, before enquiring whether the first general rule has been complied with, it must determine whether the last two are applicable. The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in light of the general principle enunciated in the first rule."
Given the generality of the protection set out in the first sentence of the article it is, as the Dean of Faculty submitted, not an essential requirement of an infraction of A1P1 that the measure of which complaint is made be categorised either as a deprivation of ownership or as a control on the use or enjoyment of property.
[100] The decision of the ECtHR in James v United Kingdom also makes clear that it is not necessary for a successful claim of breach of the protection of the right of property that the measure which impinges upon the complainer's property rights be a measure conceived directly in the property or financial interests of the State. A measure adopted by the State and intended to effect a transfer of property rights from one citizen (or class of citizens) in favour of another citizen (or class of citizen) may amount to an infringement of A1P1. Put in other words, A1P1 is not concerned only with measures confiscating or transferring assets in favour of the State itself; it also applies where the State deploys measures depriving one citizen of his property by transfer to another.
"Possessions" [101] Further, it may be observed that the term "possessions" (in French "biens") in the first sentence of A1P1 has been given a wide interpretation. It is plainly not confined to corporeal items of property, but encompasses incorporeal property, including personal contractual claims. An entitlement to a claim for damages resulting from negligence is within A1P1 protection. Thus in Pressos Compania Naviera SA and Others v Belgium (1995) 21 EHRR 301 retroactive legislation removing shipowners' entitlement to damages for the consequences to their ships of collisions caused by the negligence of the pilots whom they were bound to employ constituted a violation of A1P1. We were referred in the written and oral arguments to a number of other cases in which such incorporeal assets were seen as constituting "possessions". The most recent pronouncement with which we were provided is the judgment of the ECtHR of 11 February 2010 in Application No.33704/04 Affaire Sud Parisienne de Construction v France , concerning legislation in the field of public procurement building contracts which retroactively deprived the complainer, a sub-contractor, of its contractual entitlement to interest at a particularly favourable rate for late payment of sums due to it. At paragraph 30 of its judgment the ECtHR said:
"Compte tenu de ce qui précède, la Cour considère que la requérante bénéficiait en l'espèce d'un intérêt patrimonial constitué, d'une part, de la créance en principal d'un montant de 1 346 952,57 francs et, d'autre part, des intérêts moratoires contractuels y relatifs. S'agissant des intérêts moratoires, la Cour constate que la modification de leur mode de calcul intervint juste avant que l'arrêt du 3 juin 1997 soit rendu. Partant, la requérante a donc un " bien ", au sens de la première phrase de l'article 1 du Protocole n o 1, lequel s'applique dès lors en l'espèce ( Lecarpentier et autre c. France , n o 67847/01, § 40, 14 février 2006; S.A. Dangeville c. France , n o 36677/97, § 48, CEDH 2002)."
[102] We consider therefore that, in light of the interpretation of the ECtHR of the term "possessions" it may now be said that the general protection afforded by A1P1 extends to what might be said properly to constitute the patrimony of the person concerned, whether that person be natural or juristic. There may of course be a question whether a particular claim, whether contractual or non-contractual, has a sufficient prima facie legal and factual basis to be regarded as an asset within the patrimony of the person concerned. Counsel for the Lord Advocate referred in that connection to Kopecky v Slovakia (2005) 41 EHRR 43 . But for reasons which will become apparent we do not consider that any such question really arises in the present case.
[103] In the opening sentences of paragraph [189] of his Opinion the Lord Ordinary accepts as being obvious that the petitioners' substantial capital resources must qualify as being "possessions". In his submission to us, counsel for the Lord Advocate accepted, in our view correctly, that such was the case. There then follows in the Opinion delivered by the Lord Ordinary a discussion of whether the Rothwell decision created an immunity and whether an immunity could constitute a "possession". At paragraph [191] of his Opinion the Lord Ordinary states that he was unable to accept that an immunity from claims is sufficient to bring A1P1 into play. In his submissions to us the Dean of Faculty indicated that, while there had been some protracted discussion before the Lord Ordinary as to whether the Rothwell decision created an immunity from pleural plaque claims and, if so, whether that immunity could be a "possession", the discussion was essentially provoked by the respondents' approach to the Rothwell decision. It was not, the Dean of Faculty stressed, part of the petitioners' case that Rothwell created an immunity and that such an immunity was a "possession" of the petitioners. The "possessions" of the petitioners with which it was contended that the 2009 Act interfered were their assets and capital resources generally.
[104] In these circumstances the argument before us was not concerned to any large extent on the interpretation of the notion of "possessions" but was focused rather, in the first place, on whether the 2009 Act constituted an interference by the State with the petitioners' property.
Interference [105] The argument for the petitioners on that aspect proceeded on a number of propositions which, we think, may be summarised as follows:
(i) As employer's liability insurers, the petitioners' liability is confined to indemnity for claims of personal injury or disease for which, as a result of events during the currency of the policy, the employer incurred legal liability;
(ii) an employer does not incur any liability unless his acts or omissions have caused actionable, i.e. actual harm;
(iii) the decision of the House of Lords in Rothwell simply stated that fundamental principle, which applies equally in both Scottish and English law, as being and having always been, the law. It dismissed the aggregation theory developed in a few English first instance cases (para [87]) as erroneous. Accordingly Rothwell made clear that in the case of asymptomatic pleural plaques no cause of action existed;
(iv) hence, but for the advent of the 2009 Act, the petitioners have no liability under the policies which they had underwritten as respects claims for asymptomatic pleural plaques;
(v) the 2009 Act innovated retroactively by creating a liability on employers for their acts or omissions in the past when those acts or omissions would not give rise to any liability in the absence of the provisions of the 2009 Act; and
(vi) the 2009 Act was not restricted to placing a retroactive legal responsibility on the employer since the terms of section 4(2) of the 2009 Act were intended to ensure that the retroactively created liability on the employer was passed to his insurer, employer's liability insurance being obligatory.
[106] We have little difficulty with the proposition that the decision of the House of Lords in Rothwell re-stated the fundamental common law requirement in both English and Scots law of the existence of actual actionable harm as a prerequisite for an action of damages for personal injury. Counsel for the respondents did not advance any submission to the contrary. We also accept that in so far as there may have developed some "aggregation" theory in some first instance decisions in England, that development was dismissed by the House of Lords in Rothwell as being erroneous. Since the Rothwell decision thus confirmed the common law as it was always to have been understood, it is in our view impossible to avoid the conclusion that the 2009 Act (cf in particular section 4) involved retroactive legislation imposing a liability on employers which did not otherwise exist and hence imposed a liability to provide indemnity for such claims on their respective employer's liability insurers.
[107] Although it appears that before the Lord Ordinary it was not disputed that the provisions of the 2009 Act were capable of constituting an interference with the reclaimers' capital resources, in the argument before us there was canvassed the question whether, as the petitioners contend, the imposition by the State on a citizen of a liability to pay money (whether to the State or to another citizen or class of citizen) constitutes, or may constitute, an interference with the citizen's property. It was submitted on behalf of the reclaimers that it did. While the contrary was not strongly pressed by counsel for the Lord Advocate, he was unwilling to concede the proposition. It is thus necessary that we examine the matter.
[108] First, it may be noted that the concluding words of the second paragraph of A1P1, preserving the right of a State to secure the payment of taxes would indicate that the enforcement of a liability to pay taxes would be an interference - but an easily justified interference - with the patrimonial interests of the taxpayer. If measures to enforce a fiscal liability constitute an interference, it is hard to see why the imposition of the fiscal liability in the first place, a necessary precursor to enforcement, should not equally be an interference, but equally an easily justifiable interference, with the patrimony of the citizen concerned. In Burden v United Kingdom the complainers' grievance was that, as sisters living together, on the death of one of them (the first to die) the deceased sister's estate would be liable to pay inheritance tax whereas an estate passing to a surviving spouse or civil partner would not be subject to that taxation liability. This complaint was framed as a breach of A1P1 read with Article 14 of the ECtHR (prohibition of discrimination) because the State placed on the estate of the pre-deceasing sibling a financial liability which was not placed on the estate of a pre-deceasing spouse or civil partner. In its judgment the Grand Chamber stated at paragraph 59:
"Taxation is in principle an interference with the right guaranteed by the first paragraph of Art. 1 of Protocol No.1, since it deprives the person concerned of a possession, namely the amount of money which must be paid. While the interference is generally justified under the second paragraph of this Article, which expressly provides for an exception as regards the payment of taxes or other contributions, the issue is nonetheless within the Court's control, since the correct application of Art.1 of Protocol No.1 is subject to its supervision. Since the applicants' complaint concerns the requirement for the survivor to pay tax on property inherited from the first to die, the Grand Chamber considers that the complaint falls within the scope of Art.1 of Protocol No.1 and that Art. 14 is thus applicable."
[109] Given that the imposition by the State of a liability to pay money to the State by way of taxation is thus "... in principle an interference with the right guaranteed by the first paragraph of [A1P1], since it deprives the person concerned of a possession, namely the amount of money which must be paid...", it is in our view difficult to see any good reason for which the imposition by the State, at least retroactively, of a liability on one citizen (or class of citizen) to make payment to another citizen (or class of citizen) should not equally constitute an interference with the former's patrimony for the purposes of A1P1. As already mentioned, in its judgment in James v United Kingdom the ECtHR settled that the protection of A1P1 is not confined to an interference with property directed in favour of the State or other public bodies.
[110] Other decisions of the ECtHR to which our notice was brought may also be analysed consistently with that view. In Lecarpentier and Another v France , Application No. 67847/01, 14 February 2006 , and also in an effectively parallel case, Achache v France , Application No. 16043/03, 3 October 2006 , the essential facts were that the applicants before the ECtHR had taken out loans from financial institutions for the purchase of immoveable property. The loan transactions were governed by certain legislative or regulatory provisions respecting the information to be provided to the borrower, which requirements had not been satisfied in the cases of the respective complainers. Some years after the applicants had been repaying interest on the loans which they had taken out, the Cour de Cassation declared, in a judgment interpreting those regulatory requirements, that an omission by the lender to observe the regulatory requirements rendered recovery of interest on the loans unenforceable ab initio . The applicants thereafter sued for a declaration that the financial institution in question had forfeited its right to interest and for repetition of the interest which they had paid to the lender. The legislature then intervened to reverse retroactively the decision of the Cour de Cassation. While the violation of A1P1 resulting from that legislative intervention was largely conceived as being an interference with the claim for repetition of the interest paid, which claim might thus be seen as an asset, on a closer jurisprudential analysis, the disallowance by the legislature of the claim for repetition was brought about simply by imposing a retroactive liability to make payment of interest for the payment of which the Cour de Cassation had held that liability did not exist.
[111] In these circumstances, we consider that, at least where retroactive, the imposition by the State of a liability to make payment of money, whether to the State or to another citizen, may constitute an interference with the right of property protected by A1P1.
[112] As already mentioned, counsel for the Lord Advocate accepted that the petitioners' assets and reserves constituted property for the purposes of A1P1 and, as we understood him, he did not strongly dispute that the imposition by the State of a financial liability on a citizen could constitute interference with the property of that citizen. Rather, the contention for the Lord Advocate was that nonetheless the petitioners had failed to demonstrate interference, properly understood, with their property.
[113] On considering the argument advanced by counsel for the Lord Advocate in respect of that contention, we discern that it involved two branches or lines of argument, although to an extent they were somewhat intermingled in his submissions. Both lines found favour with the Lord Ordinary. Briefly, the first line consisted of the general proposition that since the 2009 Act was primarily directed to imposing liability on the negligent employer, the liability of the petitioners as insurers to indemnity the employer was secondary or derivative; the liability attaching to the petitioners were thus not a direct consequence of the 2009 Act and was hence too remote. The second branch or line of argument was more of a procedural or evidential nature. The contention was that it was not yet known whether in fact the petitioners would require to make any payment; this required to be resolved in the light of the actual claims pursued and on a consideration of the terms of the particular employer's liability policy in issue in any given case; and so, assuming the first branch to be answered favourably to the petitioners, the bringing of this petition was, in essence, premature and procedurally inept.
[114] It is convenient first to consider the more general branch of the respondents' argument to the effect that the economic consequences for the petitioners were only secondary or derivative to the primary purpose of the Act, namely that of establishing liability upon the employer, and were thus too remote to constitute any interference for the purposes of A1P1.
[115] In response to this line of argument the Dean of Faculty, among other things, stressed the matters set out by the Lord Ordinary in his discussion of the petitioners' entitlement to claim victim status in respect of A1P1. In dismissing the respondents' challenge to the petitioners' locus standi the Lord Ordinary, it was submitted rightly, rejected the notion that the petitioners lacked interest by reason of their status as insurers (cf paragraph [62] ff of the Lord Ordinary's Opinion). The plain reality was that the employer's liability insurers were the party who would have to "foot the bill" for claims relying on the 2009 Act. That was manifestly the contemplation of the Scottish Parliament when it enacted the legislation. It was difficult to see how, given the Lord Ordinary's acceptance of the intention in the legislation to ensure that in reality and in law the employer's liability insurers should meet pleural plaque claims as giving rise to victim status, the Lord Ordinary could thereafter properly hold, on a similar factual and legal basis, that there was nonetheless no "interference" in terms of A1P1 because the insurers' liability was derivative. The Dean of Faculty further stressed that the 2009 Act had been deliberately drafted and framed - particularly by reason of section 4(2) which deemed actionability of benign pleural plaques to have existed at all times and for all purposes - so as to ensure that the employers' liability policies were engaged.
[116] In approaching the competing contentions respecting the issue whether the secondary nature of the petitioners' liability as employer's liability insurers entails that the 2009 Act does not constitute an interference with their patrimony, we would mention first a point made by the respondents respecting the Lord Ordinary's rejection of the petitioners' challenge to the legislation based on a breach of Article 6 ECHR. That challenge was in essence based on decisions of the ECtHR to the effect that a legislative act interfering with the judicial determination of an ongoing litigation might constitute a violation of Article 6 - in essence a legislative interference in the independence of the judiciary to determine a dispute of which it was already seized (cf the Opinion of the Lord Ordinary, paragraphs [146] and [147]). In the course of dealing with that aspect of the case - which could only affect pleural plaque actions which had been raised and were pending at the time when the 2009 Act came into force - the Lord Ordinary said at paragraph [165] of his Opinion:
"However close the involvement of insurers in pleural plaques litigation, the fact remains that it is only former employers charged with negligence who enjoy party status. It is only the delictual rights and obligations of such employers, in a question with former employees, which may be decisively determined in these proceedings. The contractual rights and obligations of the petitioners, in a question with their insured, are not in issue. No dispute or 'contestation' is pending on such matters. Should any such dispute or 'contestation' arise in the future (which would seem highly unlikely if the petitioners were to maintain their position on 'reconfiguration' of past policies), the assertion and enforcement of contractual indemnity obligations would have to be pursued in separate proceedings at the instance of an insured employer or alternatively a successful pursuer under the Third Parties (Rights against Insurers) Act 1930. In this context I regard it as significant that while the learned Dean of Faculty bore to concede, '...for present purposes', that the 2009 Act had had the desired effect of 'reconfiguring' past insurance obligations, he did not seek to vouch that apparent concession with reference to any particular policy or policies and was reticent as to what might be argued in any different legal context. For their part, the respondents were sceptical of an unvouched concession which did not relate to any argument advanced by them, and in all the circumstances (and as further discussed at paragraphs [195], [243] and [244] below) I do not feel able to reach any conclusion as to how far, if at all, the application of particular policies may in due course be affected by the provisions of the 2009 Act."
[117] In addressing, under the A1P1 issues, the question of interference, the Lord Ordinary said at paragraph [194] of his Opinion:
"On the question whether the impact of the legislation on the petitioners' capital resources should be deemed an interference sufficient to engage A1P1, I am again conscious of the difficulties which in my view made it impossible for the petitioners to rely on article 6 and the Zielinsk (sic ) [ Zielinski v France (2001) 31 EHHR 19] principle in this case. Where legislative interference is in issue, Zielinski has sometimes been applied in the context of A1P1 claims as well as claims under article 6. The cases of Maurice [ Maurice v France (2006) 42 EHRR 42 ] , Achache and Lecarpentier are convenient examples where, on essentially the same factual basis, a favourable ruling under A1P1 rendered it unnecessary for the Court to reach a formal decision under article 6. As previously discussed, the petitioners' problems in that context are (i) that they cannot be regarded as parties to any affected proceedings; (ii) that pleural plaques litigation cannot be thought decisive of their own civil rights and obligations; and (iii) that there is nothing to indicate that the Act was designed to influence the outcome of pending pleural plaques actions anyway."
[118] In light perhaps of those passages of the Lord Ordinary's Opinion, counsel for the respondents (other than the Advocate General) submitted in the course of the discussion that the petitioners' decision not to pursue their argument in terms of Article 6 in this reclaiming motion disabled them from arguing under A1P1 that the 2009 Act constituted an interference with their property, or at least pointed to that argument being flawed.
[119] For our part, while we can see some force in the difficulty identified by the Lord Ordinary as respects the Article 6 challenge in the respect that the insurers were not parties to the sisted actions, we do not consider that the reclaimers' decision not to pursue that challenge in this reclaiming motion can properly be construed as an acceptance that the same difficulty must apply respecting the argument under A1P1. The Article 6 challenge related, and could only relate, to the pending pleural plaque actions and was thus of limited practical value to the reclaimers. But that apart and more importantly, the protections given by Article 6 relate to the procedural fairness of court proceedings and the independence and impartiality of the tribunal. The nature of the protection afforded by A1P1 is very different. Those protections are not concerned with procedural questions or interference with judicial independence but with the protection of a person's property rights from legislative or other measures adopted by the State which interfere with those patrimonial rights.
[120] From the background materials and the parliamentary debates it is, in our view, clear that the intention of the legislature was not only to give to those who had benign pleural plaques a claim for compensation, but also to ensure that such a claim would be financially effective through its being met by the relevant employer's liability insurer. While it may be that such a result follows without more from the terms of section 1 or section 2 of the 2009 Act, one finds in section 4(2) the words, stressed by the Dean of Faculty, that those sections are to be treated "for all purposes" as having unlimited retroactive effect. The 2009 Act must also be seen against the fact that the provision of insurance to cover personal injury claims by employees was made mandatory by the Employers Liability (Compulsory Insurance) Act 1969. Thus the legislative landscape into which the 2009 Act was inserted contained the known feature of obligatory insurance arrangements. The existence of employer's liability insurance arrangements was thus something contemplated by the existing legislation which, while not going so far as to enable a personal injury action by an employee to be directed immediately against the insurer as the defender, nonetheless structured a system in which an insurer would be present to meet the claim.
[121] Further, as was noted in the discussion before us, the ECtHR has on many occasions expressed the view that the protections conferred by the ECHR must be real and effective. Where, as here, the whole intention of the legislature in enacting the 2009 Act is that pleural plaque claims be met by insurers, to hold that the insurers' derivative liability is too remote to engage A1P1 would in effect be to deny to the persons whose patrimony is truly, and intentionally, affected by the Act such real and effective protection. We also think that there is much force in the submission for the reclaimers that the insurers' derivative or secondary liability having been, correctly, seen as no obstacle to their title to complain, it should not then be seen as an obstacle in the actual advancement of their complaint.
[122] In these circumstances, in which, in its legal and factual matrix, the intention and effect of the 2009 Act is to impose retroactively pecuniary liabilities on the insurer, we have come to the conclusion that the more general contention advanced by the respondents to the effect that the liability of the insurer, being derivative, is too remote to amount to an interference with the insurers' patrimony under A1P1, is not well founded.
[123] We turn next to the contention advanced by the respondents (other than the Advocate General) that this Court should not determine whether the 2009 Act constitutes any interference with the reclaimers' property in the current judicial review proceedings (or at very least at this stage in the petition procedure, there having been no second hearing). Instead, the issue required to be decided only in the context of each singular, particular pleural plaque claim dependent on terms of the particular employer's liability policy. Counsel for the Lord Advocate submitted that in the absence of an actual case, the court could not be satisfied that the reclaimers would indeed incur any liability; and therefore the crave for declarator fell to be rejected. While he accepted that the clear governmental and parliamentary intention had been to make insurers liable for pleural plaque claims, counsel for the Lord Advocate postulated that it might be that accomplishment of that aim had not been achieved in the legislation in question.
[124] Various materials before the Lord Ordinary and before us give this submission for the respondents an air of unreality. Those materials include communications from Thompsons to the Scottish Government, as part of their lobbying for promotion of the Bill, giving details of claims currently before the Court of Session and of the insurers responsible respectively for dealing with those claims - which insurers include all the current petitioners. For their part, the reclaimers lodged specimens of actual policies together with schedules (updated for the reclaiming motion) of the claims with which each of them was currently dealing. As was pointed out by the Court during the course of the debate, one of the specimen policies was with John Laing & Company Limited and linked to the list of claims by John Laing employees in those schedules. There was plainly never any doubt that, were the 2009 Act to come into effect, its intendment was that employer's liability insurers would be bound by it and would require to meet the claims of those having benign pleural plaques.
[125] Viewing matters pragmatically there is thus everything to be said for now grasping the nettle and reaching a decision on the validity of the 2009 Act in light of the challenge made to it in these proceedings, rather than postponing matters to a later point at which either an employer seeks indemnity or, the employer being insolvent, a claim is made under Third Parties (Rights against Insurers) Act 1930, and the same questions of principle are sought again to be advanced. There are also the procedural difficulties in raising the issues which we discussed earlier - see paragraph [32] . It may be noted further that the ECtHR has recognised that, while it does not decide matters which are truly academic or in the abstract, it is sufficient that a complainer runs a clear risk of being directly affected by the legislation complained of without the legislation being directly applied at the time of the complaint - see, for example, Marckx v Belgium (1979) 2 EHRR 330 .
[126] The argument before us did not extend to any detailed examination of the scope of the Court's powers, prior to the Scotland Act 1998, to make declaratory and reductive orders, or how those powers might be appropriately applied, or shaped, in light of that Act. It appears to us however that the basic jurisprudential issue is whether this Court has power when faced with a challenge to the validity of a legislative measure - in casu invalidity in terms of section 29 of the Scotland Act 1998 - to grant a declarator of invalidity in advance of any concrete case which requires actual decision. A secondary issue may be whether, assuming the existence of the power, it should be exercised in advance of the arising of a particular case calling for that practical decision.
[127] It appears that in England and Wales the court regards its power (conferred by statute) to make a declaratory order as extending to the making of anticipatory declaratory relief enabling the validity of a measure to be challenged in advance of its actual application. Reference may be made to the discussion of this topic by Professor Maurice Sunkin in English Public Law (2 nd ed. 2009) [in the series of Oxford Principles of English Law] edited by Professor Feltman at paragraphs 18.32 to 18.37 inclusive. Examples of the use of such anticipatory declaratory orders may extend so far as to include challenges to steps merely proposed to be taken to implement European Directives - see case C-491/01 British American Tobacco [2002] ECR I-11453 . Adverting to Scots sources, the discussion of "declarator ab ante " at page 113 by Walker on Civil Remedies notes in particular the observations of Lord Fullerton in Edinburgh and Glasgow Railway Company v Meek (1849) 12 D 153 at page 159 respecting assessment to poor relief:
"... it may be inexpedient to raise questions by anticipation and in many of the minor details of assessment and distribution the proper course would be to wait until the wrong were actually done. But if the point in dispute involve large and general principles on which the assessment of a particular rate-payer or class of rate-payers ought to be laid on, and if the Board have on former occasions taken what is conceived to be an erroneous view of those principles, I really see neither incompetency nor inexpediency in the party aggrieved resorting to the ordinary remedy of ascertaining and fixing, in the form of declarator, what these principles truly are, and how, consistently with them, the assessment ought to be made."
The further discussion which follows in Walker's work indicates, admittedly in the field of private law issues, a willingness of the court to entertain anticipatory declarators which are not truly academic but are simply reflective of a situation which it is likely will arise. The action of declarator is, of course, a common law remedy and in North British Railway Co v Birrell's Trustees 1918 SC (HL) 33 Lord Dunedin observed, at p 47, that one great merit of that form of action was its elasticity.
[128] In these circumstances we are of the view that it is not incompetent for this Court to grant an anticipatory declarator in appropriate circumstances. And for the reasons of pragmatism already indicated we are not persuaded that it is inappropriate for us at this stage to consider whether the 2009 Act constitutes an interference with the petitioners' patrimony.
[129] Accordingly, we consider that the contention advanced by the respondents, to the effect that the reclaimers have failed (as respects both lines of argument) to demonstrate that the liability to meet claims for benign pleural plaques constitutes interference with their possessions for the purposes of A1P1, must be regarded as unsound. For the reasons already indicated, we have come to the conclusion that the 2009 Act does amount to an interference with the property of the reclaimers; the important question which then arises is whether that interference may be justified in the public interest.
Justification [130] In light of the Strasbourg jurisprudence it was accepted by the reclaimers that a measure adopted by a State which constituted an interference with the property of a citizen would nevertheless not constitute a breach of A1P1 if the State could justify its adoption by showing that the measure served a legitimate aim in the public interest and that the measure was proportionate, in the sense of striking a fair balance between the rights of the citizen concerned and the public interest. Although in the argument for the respondents, particularly the Lord Advocate, the elements of legitimate aim and proportionality of the measure were sometimes merged, we did not understand it to be disputed that on a proper analysis the justifying of the measure involved the two-stage exercise of (a) identifying the aim of the legislative measure and the legitimacy of that aim as one serving the public interest and (b) assessing its proportionality in the light of that aim.
[131] In summary, the argument on this aspect of the reclaiming motion advanced by the reclaimers in their written submissions and orally by the Dean of Faculty, was as follows. While the aim of the 2009 Act was relatively clear, namely the provision of payment of money to those having benign pleural plaques as a result of negligent exposure to asbestos, that aim did not, in itself, provide its own justification. The respondents, particularly the Lord Advocate, had failed to identify in what manner that aim served a legitimate public interest. There was no evident public interest in making payments to persons who had not suffered any harm or disability. Essentially, those diagnosed with benign pleural plaques were in no different situation from those otherwise exposed to asbestos but who had not developed any malign condition in consequence; those so exposed would have similar health worries. The 2009 Act contravened fundamental principles of law relating to delict as stated in Rothwell . Damages should not be given to the "worried well". Experience elsewhere, particularly in the United States of America and Australia , showed the lack of wisdom in adopting such a course. In practical terms, in Scotland, in light of the decision in Aitchison v Glasgow City Council [2010] CSIH 9 ; 2010 SC 411 every pleural plaques claim would require to be litigated to preserve matters lest the claimant were subsequently to develop malign conditions such as mesothelioma or asbestosis; that was not in the public interest
[132] If, contrary to the foregoing argument, it were thought that making payments to those having benign, asymptomatic pleural plaques did have some - unclearly defined - general public interest, then the question arose, under the second limb, whether legislation imposing liability for funding that public interest consideration on insurers such as the reclaimers was proportionate. It was no doubt open to the legislature in its conception of the public interest to adopt a generous approach to a class of persons, but that did not entail that the burden of that generosity should be shouldered by private parties such as the reclaimers. They had contracted on a particular basis, now to be "reconfigured" by the 2009 Act. Nothing had been advanced to explain why the generosity of the State in giving monetary awards to those who had benign asbestos related conditions, not giving rise to any harm, should be placed on a particular class, namely those providing insurance for liabilities on contractual terms which did not include liability for benign, non-actionable conditions. The likely costs were heavy; and would entail the insurers having to maintain substantial, sterilised reserves to make future liabilities for such claims. Save in exceptional circumstances, a fair balance called for the provision of compensation to the person whose property was subject to the interference.
[133] In this context also the Dean of Faculty advanced the submission that in so far as the respondents asserted that the 2009 Act provided for continuity of a right of action for benign pleural plaques after Rothwell on the view that such a condition was actionable, that assertion was erroneous. The decisions in England in actions brought against the Ministry of Defence, namely Church v Ministry of Defence ; Sykes v Ministry of Defence and Paterson v Ministry of Defence all proceeded upon the aggregation theory and against a background of a lingering belief that pleural plaques might be symptomatic. None of the reported cases in Scotland (being the cases which we have discussed in paragraph [92] above) established that asymptomatic pleural plaques constituted actionable harm. There was no established case law in Scotland to the effect the pleural plaques were regarded as non-negligible personal injury.
[134] Examination of proportionality required a structured analysis of the various considerations and the balance struck between the public interest identified and its consequences for the person adversely affected. Reference was made to De Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 per Lord Clyde at page 79-80; R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, particularly in the Opinion delivered by Lord Steyn. Deference to an elected legislature did not exclude or excuse review of the proportionality of the measure - A v Secretary of State for the Home Department [2004] UKHL 56 ; [2005] 2 AC 68 per Lord Bingham, at paragraphs 37-42. Since the Lord Advocate had not demonstrated any legitimate aim in the general interest or identified any real social benefit in making payments in respect of asymptomatic pleural plaques, and since she had failed to show why, if such payments were to be made, it was proper to place that heavy burden on insurers such as the reclaimers, rather than taxpayers, the Lord Advocate had not discharged the task of showing that the 2009 Act was proportionate and struck the appropriate balance.
[135] The contrary argument for the Lord Advocate may be summarised as follows. The Scottish Parliament saw the Rothwell decision as productive of social injustice for those who had benign pleural plaques. The material before the Parliament demonstrated that such plaques constituted physiological changes in the lung and a person who was aware of having them was very likely to suffer considerable anxiety from knowing that asbestos had penetrated his body and that he was at greater risk of developing mesothelioma or asbestosis. The Parliament was therefore entitled to recognise a social need for those who had been negligently exposed to asbestos and had developed pleural plaques to be able to claim damages for that fact and the ensuing anxiety. Meeting the social needs of a category of people in society could constitute a legitimate aim in the public interest. Reference was made to James v United Kingdom . Further, the historical context was important. Between 1984 and the decision in Rothwell , law and practice had recognised pleural plaques as giving rise to an entitlement to damages; and that recognition also applied as between employers and their insurers. It was legitimate for the Parliament to preserve that position. At the time of enactment of the 2009 Act the Rothwell decision had not been accepted as Scots law (the remarks of the Lord Ordinary in Wright v Stoddard International plc (No.2) [2008] Rep LR 37 being obiter ) and settling the law for the future was important. The 2009 Act did not seek to enact the aggregation theory generally - which would have had wider implications. Instead the Act confined itself to the particular social injustice of the sufferer of pleural plaques and other benign asbestos related conditions. It was thus proportionate, as going no wider than necessary to meet that particular social need.
[136] As respects funding, counsel observed that the level of awards in pleural plaques were generally low. No individual company was "targeted"; a variety of insurers were involved and the State was the defending party in the case of employees in the public sector, particularly the Ministry of Defence. In the past insurers had proceeded on the basis that pleural plaques were actionable; and could be presumed to have calculated insurance premia and otherwise conducted their financial affairs on that basis. An insurance company necessarily took the risk of the law developing in a way adverse to its interest, whether that development was by judicial decision or by statute. It was accordingly not disproportionate to place a financial cost on the negligent employer's insurer. The 2009 Act thus served a legitimate public interest and the means adopted to achieve realisation of that legitimate aim were proportionate.
[137] In approaching the submissions on justification we, of course, recognise that, as expounded by Lord Bingham in A v Secretary of State for the Home Department in the passage to which we were referred by the Dean of Faculty, deference to the elected legislature does not remove the need for a court, when considering a claim that a fundamental right has been breached, to consider whether the measure serves a legitimate aim and is proportionate. Equally, it is also necessary for a court, when embarking on that task, to respect the width of the area of judgment or policy discretion enjoyed by the legislature. The ECtHR put the matter this way at paragraph 46 of its judgment in James v United Kingdom :
"46 Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is 'in the public interest'. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is 'in the public interest' unless that judgment be manifestly without reasonable foundation. ...".
We did not understand the argument for the reclaimers to contend that the approach of this Court towards the area of discretion enjoyed by the legislature should be materially different.
[138] In the succeeding paragraph of its judgment the ECtHR goes on to note that:
"Eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. ... The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice ..., even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large."
[139] It is clear to us that the Scottish Government and the Parliament saw the Rothwell decision as amounting to a social injustice in the case of those diagnosed as having pleural plaques and other benign asbestosis related conditions. Criticisms may no doubt be made of that decision. But the existence of grounds of criticism of their approach does not, of course, render the legislators' decision invalid. Assessing the validity and weight of such criticisms is essentially a matter of governmental and political judgment. Recognising that area of discretion or judgment and the test which a Court has to apply in review we, for our part, have come to the conclusion that it cannot be held that the view formed by the Scottish Government and the Parliament that the judgment of the House of Lords in Rothwell produced some injustice was a view which those bodies were not entitled to reach. Generally, a person who knows that he has pleural plaques also knows that as a result of exposure to asbestos his body has undergone physiological change, even if asymptomatic. He also knows that asbestos has entered his body. And it is entirely understandable that, on that account, he may suffer heightened levels of considerable anxiety about his risk of developing mesothelioma or asbestosis in later life, even as compared to the person who has been exposed to asbestos but has not developed pleural plaques. In other contexts, such as the legislation on harassment to which the Lord Ordinary refers, the legislature has resolved that anxiety may constitute a matter worthy of monetary compensation. Further it may also be noted that in their Opinions in Rothwell , certain of the members of the Judicial Committee of the House of Lords expressed regret or concern that a person with pleural plaques might be without a remedy - see Lord Hope at paragraph 59; Lord Scott at paragraph 74; and Lord Mance at paragraph 105.
[140] The rectification of what the legislature conceives as being a social injustice for a category of people in society can be seen as a measure in the general or public interest. This was recognised by the ECtHR in its judgment in James v United Kingdom . At paragraph 41 the court said:
"41 Neither can it be read into the English expression 'in the public interest' that the transferred property should be put into use for the general public or that the community generally or even a substantial proportion of it, should directly benefit from the taking. The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being 'in the public interest'. In particular, the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being 'in the public interest' even if they involve the compulsory transfer of property from one individual to another."
[141] As part of his criticism of the justification advanced for the 2009 Act, the Dean of Faculty submitted that the Scottish Government and the Parliament had proceeded on what he described as" the myth of continuity"; and accordingly their approach proceeded on an erroneous basis. It is no doubt the case that in presenting its proposals to the Parliament the Scottish Government placed stress on the notion of continuity and that the submissions for the Lord Advocate also placed stress on that notion. It is also no doubt correct that in none of the reported Scottish cases was the issue whether pleural plaques constituted actionable harm ever properly litigated or decided. But as we have already indicated in paragraph [93] above, in our view, those reported cases reflect what was widely accepted law and practice for a considerable period of time. We therefore consider that it cannot be said that there was no basis upon which the legislature could proceed on the consideration, among others, that it was endeavouring to secure continuity of law and practice as it existed prior to Rothwell . The weight which the legislator might place on that notion is plainly a matter for the legislator, but we are not persuaded that it was mythical and hence an irrelevant consideration.
[142] In these circumstances we are of the view that we cannot hold that the 2009 Act does not pursue a legitimate aim in the public interest.
[143] Given that the aim of the legislation - namely the payment of damages to those who have developed pleural plaques through negligent exposure to asbestos - can be seen as a legitimate aim in the public interest, the question then becomes whether the means adopted to achieve that aim is proportionate or, in other words, whether a proper balance has been struck between the public interest and the reclaimers' private interests. Essentially, the issue is whether the legislature's decision to frame the legislative text in such a way as to ensure the employer's liability insurer - as opposed to some other source such as public funds - would be liable for the claims lacks any reasonable basis.
[144] In our view, the Scottish Government and the Parliament were entitled to take into account that the insurance industry had proceeded since 1984 on the basis that their insured were liable to meet pleural plaques claims and hence that premia charged would, in general, be reflective of that belief and understanding. Further, costs to insurers in future could also be more widely diffused to employers through the level of premia charged. It is also relevant, in our view, to the assessment by the Scottish Government and the Parliament of the proportionality of what they proposed that any claim relying on the 2009 Act requires that the exposure to asbestos be shown to have occurred through fault on the part of the insured employer. At least in that respect, the insurer takes the risk that the law may develop in a way which results in the insured employer having a liability in circumstances which at the time of concluding the contract of insurance may not have been envisaged as giving rise to such a liability. As was observed by counsel for the respondents, it is by no means inconceivable that the Rothwell case might have been decided differently had the Judicial Committee endorsed the aggregation theory which had been developed in the lower courts in England and Wales .
[145] As already mentioned, the policy followed by the Scottish Government and the Parliament of making provision for compensation to those with benign pleural plaques is, of course, open to legitimate criticism. Similarly, the decision to place the burden on the employer's liability insurer. No doubt other possibilities would have been open, such as the notion of providing for a sum payable out of public funds, were it thought that some measure of compensation were necessary. However, as already mentioned, the existence of such possible criticism does not entail that the course followed by the Parliament has no reasonable foundation. Among others, the considerations just mentioned in the preceding paragraph set out a basis for its decision.
[146] That said, we are naturally conscious that in a number of its decisions the ECtHR has stated that deprivation of property without compensation will generally be unjustified and thus constitute a violation of A1P1. We mention by way of example Pressos Compania Naviera S.A. and Others v Belgium , at paragraph 38 of the judgment of the ECtHR. In cases in which the deprivation of property is in favour of the State one can readily see that the individual who is required to surrender his property should be compensated. That accords with the principle that an individual or individuals should not unfairly bear the cost of meeting expenditure on a public or collective purpose - in French administrative law sometimes expressed as "le principe d'égalité devant les charges publiques". However, in a case in which the State is concerned to rectify what it legitimately sees as a social injustice as between categories of its citizen, we have difficulty in seeing that such a rule, requiring compensation, should always apply. It may be noted that in James v United Kingdom , which in some respects at least is analogous to the present case since it involved a measure transferring property from one class of citizen to another class with a view to remedying a perceived social injustice, the absence of full compensation did not make the measure disproportionate. The matter is dealt with at paragraph 54:
"Like the Commission, the Court observes that under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on the applicant.
The Court further accepts the Commission's conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of 'public interest', such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of full market value. Furthermore, the Court's power of review is limited to ascertaining whether the choice of compensation terms falls outside the State's wide margin of appreciation in this domain."
[147] It accordingly appears to us from James v United Kingdom that the notion that property should not be taken without compensation is not an absolute one in the jurisprudence of the ECtHR and that the extent, if any, to which compensation may be provided is a matter within "the State's wide margin of appreciation in this domain" Counsel for the respondents also pointed to the fact that in cases in which the interference was not characterised as a clear deprivation of possessions under the second sentence of A1P1, payment of compensation from public funds was not seen as being essential (other than in exceptional circumstances) to the striking of a fair balance. In that connexion we note the decision, to which we were referred, of the ECtHR in J A Pye ( Oxford ) Ltd v United Kingdom (2008) 46 EHRR 45 . That case was concerned with the English legal doctrine of adverse possession and the law of limitation of actions, which had the consequence in that case of effecting the transfer of the ownership of land from the party registered in the Land Register as the owner to the possessor. The ECtHR held that the operation of the law which effected that transfer constituted an interference with the property rights of the registered proprietor but characterised it essentially as an infringement of the more general principle of protection of property and equivalent to a control on the use of property. The Court stated at paragraph 79 that in such cases "the case law on deprivations is not directly applicable". Earlier in its judgment in that case, at paragraph 64, the Court noted a series of decisions in which a loss of ownership of possessions was not seen as a "deprivation" in terms of the second sentence of the first paragraph of A1P1, but was seen as involving an infraction of the general principle enunciated in the first sentence of A1P1. Counsel for the respondents, invoking J A Pye ( Oxford ) Ltd v United Kingdom , submitted that the present case was not one of "deprivation" but one of a restriction or control of the use of the petitioners' funds. While we are not persuaded that the contention that the consequences of the 2009 Act for the reclaimers' property constitute only a "restriction on use" is free from difficulty, we note nonetheless that the applicants in J A Pye ( Oxford ) Ltd had suffered loss of their valuable property to the possessor without compensation. We are therefore fortified in the view which we take from James v United Kingdom expressed in the opening sentences of the preceding paragraph of this Opinion. We therefore approach matters on the view that the Strasbourg jurisprudence is as just discussed.
[148] The absence of any provision for compensation from public funds is of course inherently part of the decision of the Scottish Government and the Parliament that the legislation be framed in such a way as to make pleural plaques claims financially realistic from the standpoint of the claimant by ensuring that liability of the negligent employer would be passed to the insurer. As already indicated, that decision is within the area of their wide political judgment and discretion. We are not persuaded that in the context of seeking a balance between different interests in society and adjusting their respective economic interests, dicta relating essentially to compensation in cases of appropriation in the direct interests of the State are of compelling relevance. In these circumstances, while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.
[149] In the whole circumstances, it is our opinion therefore that the 2009 Act does not amount to an infringement of A1P1.
Disposal [150] We shall accordingly allow the reclaiming motion to the extent of sustaining the petitioners' ninth plea-in-law and repelling the answers of the third to tenth respondents; quoad ultra the reclaiming motion will be refused.