The Case of Hope vs Salmond

I’m not convinced the Scottish parliament’s 2009 bill permitting individuals with pleural plaques to sue for asbestos-related damages was a good law. Nor ca one be wholly comfortable with retrospective legislation. Nevertheless, the Supreme Court today upheld the Court of Session’s judgement that the insurance companies could not credibly claim their human rights had been breached nor that the Scottish parliament lacked the standing to legislate on such matters, even when that legislation was a case of overturning or reversing previous Westminster* decisions.

The Supreme Court offered a robust defence of the Scottish parliament’s prerogatives but were I a mischievous news editor mindful of the prickly relationship between Lord Hope and Alex Salmond I might have some fun with paragraph 51 of his judgement:

We do not need, in this case, to resolve the question how these conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility. It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty. As I said in Jackson, para 107, the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle. Can it be said, then, that Lord Steyn’s endorsement of Lord Hailsham’s warning about the dominance over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in the devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.

Emphasis added. What larks! Granted, Lord Hope is merely reiterating an argument about sovereignty that has previously been made by Lord Rodger (and others) but this paragraph might also be interpreted as a warning to the SNP that, whatever they may believe, the courts are of the view that the Scottish parliament is not a sovereign body and that, for good measure, the courts retain the right to dismantle wilfully irrational or extreme pieces of legislation. And they will do so in the name of the law and, in the end, of the people too.

This being so, I don’t think the First Minister will be sending a bottle of malt to Lord Hope even though his Lordship ruled in favour of the Scottish government today.

*Responding to a House of Lord decision, Westminster created an extra-statutory scheme for the (limited) compensation of those afflicted by pleural plaques. Without being an epxert in the matter, I’d say this approach was preferable to that pursued in Scotland (and, seperately, in Northern Ireland).