Session Cases At 200: Title and interest to the top spot

Sheriff K J Campbell QC

A case of constitutional importance, AXA General Insurance Co Ltd v Lord Advocate 2012 SC(UKSC) 122 is Sheriff K J Campbell’s favourite entry in Session Cases, whose bicentenary we celebrate this year. Nominate your favourite cases here.

What an intriguing challenge: nominating the top Session Case from the past two centuries of capturing the law of Scotland. I can think of only two people who have read every single Session Case, but of those I have read, my choice is AXA General Insurance Co Ltd v Lord Advocate 2012 SC(UKSC) 122.

This is an age when public law is an area of vital and immediate interest for lawyers as much as the wider public. AXA is a case which, in less than 10 years, has acquired a leading place in the scholarly and professional literature.

Recapping briefly, in AXA, the Court of Session and then the UK Supreme Court were invited to consider a direct challenge to an Act of the Scottish Parliament, on common law grounds as well as of legislative competence in terms of the Scotland Act. That attracted interventions from the other devolved administrations by the time the case was before the Supreme Court. The legislation concerned liability for certain conditions associated with asbestos exposure, and the petitioner is an insurance company with potential liabilities which might arise as a result of the legislation. A number of potential claimants under the legislation sought to enter process as additional respondents.

Thus there were several strands to the proceedings, and the court was able to address a number of points which can fairly be described as constitutional in importance.

First, the Supreme Court authoritatively described the character of the Scottish Parliament and its legislation:

“The carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.” [para 46]

Secondly, in addressing the question of whether and to what extent Acts of the Scottish Parliament are susceptible to judicial review at common law, the court was able to address the constitutional relationships between the courts and the UK and devolved legislatures. While legislation is not subject to challenge on common law grounds of irrationality, unreasonableness, or arbitrariness (para 52), the courts nonetheless have power to protect access to the courts and other fundamental elements of the rule of law (para 51).

Thirdly, addressing the argument about the interest of the potential claimants under the legislation, Lord Reed took the opportunity to deal with a long-standing debate about whether the existing rules about title to challenge matters by judicial review remained appropriate. His judgement that while traditional notions of title and interest remain appropriate in private law matters, in public law matters, a more fluid conception of standing based on sufficiency of interest was now the appropriate approach, marks a very significant shift. In terms of the significance and breadth of change which this part of the judgment makes, AXA is worth its place as top Session Case alone.

Amongst its roles, the Supreme Court is a constitutional court, and AXA is an illustration of the practical importance of that.

K J Campbell QC is a sheriff in Edinburgh, and was chairman of the SCLR 2018-2019

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