Mick Antoniw says he is disappointed by a decision to rule against a new Asbestos Bill being within the Assembly’s competence.
The Supreme Court has decided that my Private Member’s Bill, the Asbestos Recovery of Medical Costs (Wales) Bill is not within the competence of the Assembly.
To say I am gutted and devastated by the decision is an understatement. The Bill was intended to recover from negligent employers against whom there was a legal judgment or compensation settlement, the medical costs incurred by the Welsh NHS in order to provide greater assistance to Asbestos victims and their families.
Health is devolved. The recent ruling in the Agriculture Wales Bill, now an Act, supported the view that matters related to devolved areas, even if not specifically devolved are within the competence of the Assembly. However, the Supreme Court by a majority of 3 to 2 do not consider this applies to this Bill which they have decided is a fiscal matter, and therefore not devolved. As it is not within competence it also fails under Human Rights law as an interference in private property which can be justified but only if it is within competence.
The restrospective recovery of medical costs is also something that concerned the Court, but the judgment does not exclude this provided there are significant public interest grounds for doing so. It is disappointing that the majority of judges did not consider this implicit in the Bill and supporting evidence.
The judgment is long and detailed and needs careful consideration, but at this stage it is clear that we do not the power under our current constitutional confused settlement to recover these medical costs from the Insurers in the manner proposed by the Bill.
Having opened the legal “stable door” to Welsh Government, the Supreme Court now appears to be trying to partly close it and limit the scope of the Assembly’s powers. The judgment is clearly a set back and exposes the lack of clarity of the existing devolution arrangements. It has to be said that even a reserved powers model would not necessarily have overcome this decision. What is needed are clearly defined powers . We need an end to this constitutional confusion and uncertainty .
At this stage I am undecided if the Bill can be resurrected in another form and it seems to me that rather than seek a clever legal backdoor way of re- introducing the Bill we must instead seek the necessary powers to be able to pass legislation of this type.
Clearly the insurance industry is delighted with the decision, but it is at the expense of providing additional support to asbestos victims and their families. It remains to be seen what approach will be adopted by the Scottish Parliament where the first steps have been taken to introduce a similar Bill.