Democracy, social justice and a touch of EVEL

Emyr Lewis asks what the Supreme Court’s decision against an Asbestos Bill for Wales means for judicial attitudes to devolution.

Emyr Lewis is a Senior Partner at Blake Morgan. He is also a Senior Fellow in Welsh Law at the Wales Governance Centre, Cardiff University.

Mick Antoniw was understandably unhappy about the Supreme Court’s decision on Monday in the case of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill.  As a back-bencher, he has assiduously promoted and shepherded through the Assembly a Bill which would have had the effect of recovering for the NHS in Wales some of the cost of treating people suffering from asbestosis as a consequence of exposure to that dangerous substance while at work.

From a legal perspective, there are several aspects of the judgment of the majority, given by Lord Mance, which raise questions about whether there is a shift in judicial attitude to laws made by devolved legislatures.

Furthermore, the contrasting judgments of the majority and minority give an interesting insight into a radical difference of approach in the Supreme Court towards the Welsh Assembly as a democratic body, and (for good measure) one passage in the minority judgment touches in a fascinating way on the issue of English votes for English laws.

The Bill provided for past employers (and their insurers) of people who had contracted asbestosis as an industrial disease to pay the Welsh Ministers the cost of future NHS treatment for that condition.  The Counsel General for Wales himself referred the Bill to the Supreme Court.  Insurance companies intervened.

Originally, the only issue was whether the Bill involved a breach of employers’ and insurers’ human rights under the first Article of the first Protocol of the European Convention (A1P1).  During the hearing, however, the issue was raised as to whether the Bill was within the subject-matter competence of the Assembly. The Court held by a majority of 3 to 2 that the Bill was outside subject-matter competence, that is to say it did not fall within one of the subjects in Schedule 7 of the Government of Wales Act 2006.  The Court was unanimous that the Bill infringed A1P1, though the minority took the view that certain amendments to one of the provisions in the Bill could save it.

On subject matter competence, the principal issue at stake was whether the Bill related to “Organisation and funding of the national health service,” which is one of the subjects under the heading “health” in paragraph 9 of Schedule 7 G.

Lord Mance, with whose judgment the majority of the Court agreed, drew attention to previous decisions where it was held that the phrase “relates to” indicates “something more than a loose or consequential connection”.  In his opinion (para 27):

The expression “organisation and funding of national health service” could not, in my opinion, have been conceived with a view to covering what would amount in reality to rewriting the law of tort and breach of statutory duty by imposing on third persons (the compensators), having no other direct connection in law with the NHS, liability towards the Welsh Ministers to meet costs of NHS services provided to sufferers from asbestos-related diseases towards whom such third persons decide to make a compensation payment for liability which may or may not exist or have been established or admitted.

Lord Mance also made certain other observations which may cast some light on how the Courts may choose to interpret Schedule 7 GOWA 2006 in future.

At para. 19, he focused on paragraph 9 of Schedule 7, saying ‘The language of paragraph 9 of Schedule 7 addresses matters all closely linked to the internal organisation and the delivery of national health services – promoting health, preventing, treating and alleviating (or controlling) disease, illness, injury, disability or mental disorder, providing services, governance and standards of care and finally “organisation and funding of national health service”. A natural inference is, I think, that “funding” was also seen as closely linked with the internal organisation and delivery of health services’

In other words, he confined the meaning of the subject under consideration by reference to the other subjects under the same heading.  This approach, adopted in respect of other headings, could result in a substantial reining-in of the Assembly’s competence.

At para. 23 he appears to be suggesting that Schedule 7 should not be interpreted as enabling the Welsh Assembly to legislate in areas where the Welsh Ministers have pre-existing competence.  If that is what is intended, then it would be a very radical departure indeed from how the devolution settlements in the UK are understood to operate.  Indeed, in para. 24 he shies away from adopting this as part of his decision, but it nevertheless suggests a cast of mind which is seeking to confine the Assembly’s competence.

By contrast, the judgment of the minority, given by Lord Thomas, took a more purposive view.  In his opinion the Bill had two objectives, namely firstly ‘to withdraw the requirement that the Welsh NHS continue the delivery of the benefit to employers and their insurers of not having to meet the cost of medical treatment and care of an employee where the employers are responsible for causing asbestos diseases as tortfeasors’. and secondly to create a mechanism for collecting the costs.

In his view, these were clearly within subject-matter competence.

Perhaps the most interesting and illuminating contrast between the two judgments, however, relates to the A1P1 issue.  The ins and outs of that issue are too intricate for this piece, but Certain parts of Lord Mance’s judgment appear to suggest that it is legitimate for the Courts to investigate (in the context of A1P1) the extent to which Assembly legislation is in the public interest, and also to investigate the sufficiency of the consideration given to legislation by the Assembly before it is passed.  Neither of these could be done in respect of an Act of Parliament, because of Article 9 of the Bill of Rights which has been interpreted as protecting Parliamentary proceedings from judicial scrutiny.

This approach is an interesting contrast to that taken by the Court in the case of Axa v. Lord Advocate which established that laws made by the devolved legislatures are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness, and where there were warnings against judges substituting their views for those of a democratically elected body.

In a powerfully (some might say passionately) argued part of his judgment (Paragraphs 119 to 124), Lord Thomas strongly defends the primacy of the Welsh Assembly as a democratic institution in connection with issues of public interest and policy: the judgement of the Welsh Assembly as to the public interest and social justice should be preferred on matters of social and economic policy to a judicial view of what it regards as being in the public interest and representing social justice.

In this passage, he makes a telling comparison with the situation of “English laws” in the UK Parliament:

I cannot see why in principle the United Kingdom Parliament in making legislative choices in relation to England (in relation to matters such as the funding of the NHS in England) is to be accorded a status which commands greater weight than would be accorded to the Scottish Parliament and the Northern Ireland and Welsh Assemblies in relation respectively to Scotland, Northern Ireland and Wales. As each democratically elected body must be entitled to form its own judgement about public interest and social justice in matters of social and economic policy within a field where, under the structure of devolution, it has sole primary legislative competence, there is no logical justification for treating the views of one such body in a different way to the others, given the constitutional structure that has been developed. The judgement of each must have the same effect and force. 

It is fair to say that the Supreme Court’s decision has increased the uncertainty about the Assembly’s law-making powers, after the Agricultural Sector (Wales) Bill case had appeared to establish an orderly and principled approach to interpreting Schedule 7.  Perhaps that was inevitable in the current case, which involved for the first time (in connection with Welsh legislation), persons whose commercial interests were affected making representations to the Court.  It would be too glib to characterise the difference between the two judgments in terms of whether commercial interests or social justice took priority.  Nevertheless, the contrast in forensic approach taken, assumptions made and indeed phraseology used suggest that there are fundamental differences of principle at work.

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