Overview: Constitutional and Administrative Law

Abstract

Five constitutional and administrative law cases were heard by the Supreme Court in the 2011-12 legal year. Axa General Insurance Limited and others v The Lord Advocate and others (Scotland)1 concerned whether Acts of the Scottish Parliament can be judicially reviewed. Insurers challenged the legality of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which provides that asymptomatic pleural plaques constitute an actionable harm in themselves. This Act effectively reversed the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd.2 While the Supreme Court accepted that the insurers had victim status,3 it rejected their claim that the Act violated their right to property under Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR)4 and that it was unreasonable and irrational. Even the retroactive aspect of the Act5 was not sufficient to conclude that the compensation scheme was disproportionate.6 In rejecting the insurers' second ground, the Supreme Court considered whether Acts of the Scottish Parliament were amenable to judicial review. It analysed the nature of the devolved powers and concluded that while the Scottish Parliament did not possess sovereignty—an attribute which remains with the United Kingdom Parliament—it is nevertheless a self-standing democratically elected legislature with plenary powers. The Supreme Court held that Acts of the Scottish Parliament are in principle reviewable, but that judges should intervene only in the most exceptional circumstances.7 In this case, it found that it would