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Devolved Legislation and Human Rights

The Supreme Court has had to consider the interaction between the Human Rights Act and the powers of the devolved legislative bodies in a number of cases. One area that has recurred is compensation for industrial  injury or disease claims caused by exposure to asbestos. This has an interest because there is evidence to suggest that some of the asbestos industry knew more about the risks of exposure to asbestos than it revealed before it became so heavily regulate to ensure safety, and because a small exposure a long time ago can still cause disease.

This was before the Supreme Court case of AXA Insurance v Lord Advocate[1] concerning legislation by the Scottish Parliament about asbestos claims, which held that the Scottish legislation interfered with the rights of insurers about certain asbestos claims but was proportionate and so not in breach of the Act.

A proposed bill relating to asbestos claims has been considered further by the Supreme Court but this time in the case of Wales in the case of Recovery of Medical Costs for Asbestos Diseases (Wales) Bill.[2] Here the National Assembly of Wales passed a law which was intended to impose liability for the medical costs of treating victims of asbestos-related disease where that disease was the subject of compensation, usually because the victim was an employee of a company which handled asbestos in some way. The medical costs were those incurred by the NHS and the compensation was paid both by employers and insurers of employers (or others), and whether or not liability was admitted. The liability under the bill was also retrospective: it applied even to asbestos exposure in the past.

The Supreme Court held (by a majority) that the bill was outside the legislative competence of the Welsh Assembly. The Welsh Assembly’s role in the organisation of the NHS in Wales which allowed it to set charges to cover NHS costs did not extent to raising money from any source just because it was being used for the NHS. It also was not empowered to deal with insurers. The Court went on to hold that even if the Assembly were acting within its proper scope, the bill would infringe Article 1 of Protocol 1. Particular justification was needed for retrospective legislation and that had not been provided here.

[1] [2011] UKSC 46, [2011] 3 WLR 871

[2]  [2015] UKSC 3

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