The price of rights

Just recently we have seen some significant judicial decisions on the vires of legislation and other rule-based actions.

First there was the Inner House decision upholding the Scottish Parliament's Act restoring (or preserving) the right to compensation for those found to be suffering from pleural plaques following employment-related exposure to asbestos.

And on the same day this week, there were issued the English High Court judgments in the action by the banks challenging the Financial Services Authority guidelines on steps they should take to remedy possible cases of mis-sold payment protection insurance (failed); and the challenge by BT and Talk Talk to the validity of the Digital Economy Act 2010 (failed except as to certain draft regulations).

In all three cases, of course, large sums are at stake - up to £4.5bn estimated in the banks' action. At least the first two look almost certain to be appealed, the Scottish case being destined for the Supreme Court and doubtless the banks' action also if the claimants fail before then but obtain the necessary leave. We have probably not heard the last of the Digital Economy Act either.

Again a common thread in the first two cases is that a large number of claims by individuals are put on hold until the legal processes are exhausted. That has naturally led to criticisms that those who are currently in line to have to pay compensation are simply trying to evade their responsibilities.

The issue is not an easy one. We are no longer in the days when an Act of Parliament had no prospect of being sucessfully challenged. We have a system of higher rights, via the EU and the Human Rights Convention, and these are meaningless if they cannot be applied equally to all. Unfortunately when you have a lot of money involved, litigants with the means to fight an action all the way, and lengthy court processes with a lot of cases competing for hearing dates, it is difficult to find a way to reduce the wait for justice even if the claims by individual members of the public are ultimately upheld.

Can anything be done? Probably not without spending more money adding to the resources, judicial and otherwise, of the higher courts. Yes, we could prioritise certain cases, but only at the expense of others which would then take even longer to be given their turn in the system. 

One possible way to achieve a final resolution sooner, which should work for Scotland and could no doubt be adapted for the rest of the UK, would be to broaden the current (but so far unused) mechanism for the Lord Advocate to refer a newly passed Scottish Parliament bill to the Supreme Court prior to royal assent if there is a question as to its vires. So far the Government's legal advisers have managed to steer a safe course within the Parliament's competence, as no challenge to an Act of the Parliament has yet succeeded, but could the Lord Advocate not be mandated by statute to make a reference if it appears that a challenge is likely and that it is in the public interest that any doubts as to competence should be resolved as a matter of priority? The current Scotland Bill would be the ideal opportunity to make this move.

If any such jurisdiction existed UK-wide, we might well have to consider setting up a separate constitutional division, say, of the Supreme Court in order to keep delays to a minimum, perhaps with a European Court style Advocate General system so that the court has the benefit of an independent view if there are no judgments of the courts below to review.

There is much to consider, not least the scope of any such jurisdiction if cases such as the banks against the FSA are to be brought within it. But it might be the best chance of helping individuals who might otherwise die still waiting for justice.