UKSC 46
On appeal from:  CSIH 31
AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
12 October 2011
Heard on 13, 14 and 15 June 2011
Richard Keen QC
(Instructed by Brodies LLP)
Alan Dewar QC
James Mure QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
Ruth Crawford QC
(Instructed by Office of the Solicitor to the Advocate General for Scotland
Aidan O'Neill QC
(Instructed by Thompsons Solicitors Glasgow Scotland)
|Intervener (First Minister of Wales)
Theodore Huckle QC
Clive Lewis QC
(Instructed by Welsh Assembly Government Legal Services Department, Cardiff)
|Intervener (Attorney General for Northern Ireland)
John F Larkin QC
Donal Sayers BL
(Instructed by Solicitors for the Attorney General for Northern Ireland)
|Intervener (Friends of the Earth Scotland Ltd)
(Instructed by Patrick Campbell & Co Solicitors)
|Intervener (Department of Finance and Personnel (Northern Ireland))
Paul Maguire QC
Paul McLaughlin BL
(Instructed by Departmental Solicitor's Office)
"1. Pleural plaques
(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.
2. Pleural thickening and asbestosis
(1) For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused and is not causing impairment of a person's physical condition is a personal injury which is not negligible.
(2) Those conditions are –
(a) asbestos-related pleural thickening; and(b) asbestosis.
(3) Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.
(4) Any rule of law the effect of which is that such a condition does not constitute actionable harm ceases to apply to the extent it has that effect.
(5) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.
3. Limitation of actions
(1) This section applies to an action of damages for personal injuries –
(a) in which the damages claimed consist of or include damages in respect of –(i) asbestos-related pleural plaques; or(ii) a condition to which section 2 applies, and(b) which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.
(2) For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 (c52) (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.
4. Commencement and retrospective effect
(1) This Act (other than this subsection and section 5) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint.
(2) Sections 1 and 2 are to be treated for all purposes as having always had effect.
(3) But those sections have no effect in relation to –
(a) a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or(b) legal proceedings which are determined before that date.
5. Short title and Crown application
(1) This Act may be cited as the Damages (Asbestos-related Conditions) (Scotland) Act 2009.
(2) This Act binds the Crown."
(1) that it is incompatible with their rights under article 1 of Protocol 1 to the Convention ("A1 P1") and that it is in consequence outside the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998;
(2) that it is open to judicial review on common law grounds as an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament.
There was a third basis, argued before the Lord Ordinary, that the 2009 Act was an interference by means of legislation with a current dispute and was thus incompatible with the appellants' rights under article 6. But this argument was rejected by the Lord Ordinary (2010 SLT 179, paras 161-179) and it was not renewed in the Inner House or before this court.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
(a) do the appellants have victim status?
"An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his 'possessions' within the meaning of this provision. 'Possessions' can be either 'existing possessions' or assets, including claims, in respect of which the applicant can argue that he or she has at least a 'legitimate expectation' of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a 'possession' within the meaning of article 1 of Protocol 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition."
Basing himself on this guidance, he submitted that the test was not satisfied. He accepted that the expectation was that, where an insured interest was involved, the insurer would respond and provide the employer with the indemnity. But the effect of the Act was indirect. The contractual relationship between the employer and the insurer was quite separate from that between the employer and his employee. A person could not claim to be a victim unless he was directly affected. In this case the Act did not take anything away from the employers or their insurers in that sense. As the Lord Ordinary said (2010 SLT 179, para 195), it was not the Act which would cause the claimants' claims to succeed but proof of all the legal and factual requisites for an award. So its consequences are simply too remote from the legislation to qualify.
"It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risk being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation."
The court referred by way of example to Marckx v Belgium (1979) 2 EHRR 330, where the applicants were found to be directly affected by, and thus victims of, legislation which would limit the child's right to inherit property from her mother upon her mother's eventual death. On the other hand in Willis v United Kingdom (2002) 35 EHRR 547 the risk of the applicant being refused a widow's pension on grounds of sex at a future date was found to be hypothetical since it was not certain that she would otherwise fulfil the statutory conditions for the payment of the benefit on the relevant date.
(b) legitimate aim
"The effects of asbestos are a terrible legacy of Scotland's industrial past, and we should not turn our backs on those who have contributed to our nation's wealth. We have, therefore, acted quickly to reassure people who have been diagnosed with pleural plaques through being negligently exposed to asbestos that they will continue to be able to raise an action for damages."
"Pleural plaques have been regarded as actionable for over twenty years. They are part of the unintended and unwelcome consequences of our industrial heritage. The HoL Judgment has raised serious concerns for people with pleural plaques. Although plaques are not in themselves harmful they do give rise to anxiety because they signify an increased risk of developing very serious illness as a result of exposure to asbestos. In areas associated with Scotland's industrial past, people with pleural plaques are living alongside friends who worked beside them and are witnessing the terrible suffering of those who have contracted serious asbestos-related conditions, including mesothelioma. This causes them terrible anxiety that they will suffer the same fate. The Scottish Government believes that people who have negligently been exposed to asbestos who are subsequently diagnosed with pleural plaques should continue to be able to raise an action for damages as has been the practice in Scotland for over twenty years."
It is clear from this explanation that the matter was seen as a social injustice which justified intervention by the legislature. As was later to be pointed out in para 11 of the Explanatory Notes that accompanied the Bill when it was introduced on 23 June 2008, there was no accurate record of how many cases were being diagnosed each year in Scotland. But the incidence of pleural plaques was thought to be rising, and it was estimated that up to half of those occupationally exposed to asbestos would have pleural plaques thirty years after first exposure. The numbers of those likely to be involved, and the circumstances in which they had contracted this condition, were such that the issue was seen to be a legitimate one for legislation in the public interest.
"Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is 'in the public interest'. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is 'in the public interest' unless that judgment be manifestly without reasonable foundation."
This formula has been repeated in many cases since that date: see, for example, Broniowski v Poland (2004) 40 EHRR 495, para 149; Maurice v France (2005) 42 EHRR 885, para 84. In Draon v France (2005) 42 EHRR 807, para 76 the court said that the notion of "public interest" is necessarily extensive as it will commonly involve consideration of political, economic and social issues. The court will, it said, respect the legislature's judgment as to what is in the public interest unless that judgment is manifestly without reasonable foundation.
"… the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of article 1."
In Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301, para 63, recalling this passage, the Commission said that that fair balance must be regarded as upset if the person concerned had to bear an individual and excessive burden. In The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v United Kingdom (1997) 25 EHRR 127, para 80 the court, again recalling what had been said in Sporrong, said that there must be a reasonable relationship of proportionality between the means employed and the aims pursued. In Draon v France (2005) 42 EHRR 807, para 79 the court added these comments:
"Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under article 1 of Protocol 1 only in exceptional circumstances."
"Turning to the retroactive effect of the 1993 Act, the Court notes that neither the Convention nor its Protocols preclude the legislature from interfering with existing contracts. The Court considers that a special justification is required for such interference, but accepts that in the context of the 1993 Act there were special grounds of sufficient importance to warrant it. The Court observes that in remedial social legislation and in particular in the field of debt adjustment, which is the subject of the present case, it must be open to the legislature to take measures affecting the further execution of previously concluded contracts in order to attain the aim of the policy adopted."
The common law grounds
"The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument."
Are the 3rd to 10th respondents "directly affected"?
"Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process; and if the motion is granted, the provisions of this Chapter shall apply to that person as they apply to a person specified in the first order."
An annotation to this rule in Greens Annotated Rules of the Court of Session printed in the Parliament House Book, vol 2, C 478/4 states:
"The motion to enter the process should state the title and interest of the person."
Although the phrase "title and interest" does not appear in rule 58.8(2), it is used in the form of petition for judicial review which is set out in Form 58.6. That form, which is to be read together with Rule of Court 58.6(1), requires paragraph 1 of the petition to state the "designation, title and interest" of the petitioner.
"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think that it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies."
Although he refrained from making any general pronouncement as to when there is title and when there is not (see p 17), he gave some examples. At p 13 he said that the simplest case of all is where a person is the owner of something, which enabled him to have the right to sue in the vindication or defence of his property. Next in simplicity came contract, where the relation of contract gave the one party the right to insist on the fulfilment of the contract by the other. It was argued in the Court of Session in Dundee Harbour Trustees that the pursuers had a title and interest to challenge the use of the ferries for excursions as rival traders. But that contention was abandoned in the House of Lords by the pursuers' counsel. Lord Dunedin said at p 12 that he thought that he was right to do so: see also the Lord Chancellor (Haldane) at p 11. When a complainer can only say that he is a rival trader and nothing more, he qualifies an interest but not a title.
". . . [W]e are concerned that there is a risk that, if we specify on the face of the Bill that its provisions are for the purposes of the law of delict, defenders may seek to argue that there is no read-across to other areas of the law, eg the interpretation of contracts. This could place a significant barrier in the way of many potential claimants, if it were argued that it leaves pursuers with a delictual claim against an employer that is not covered by the employer's insurance policy. It is a pity that a meeting to discuss such issues could not take place before amendments were lodged on 25 November, especially as the process of disclosing our concerns to the Committee may also result in those concerns being drawn to the attention of those who may wish to utilise them in opposing claims for compensation, contrary to our intention and yours. Of course, we will endeavour to avoid that consequence so far as possible, but it is not entirely in our hands."
There is nothing further on this issue which I wish to add to Lord Hope's judgment on the point at paras 24-28 and Lord Reed's at paras 109-112 with which I wholly agree.
"The asbestos fibres cannot be removed from the claimants' lungs. In theory, the law might have held that the claimants had suffered personal injury when there were sufficient irremovable fibres in their lungs to cause the heightened risk of asbestosis or mesothelioma. But the courts have not taken that line."
The clear inference is that the courts might have taken that line and would have been entitled to do so. Parliament, therefore, cannot be regarded as having completely overturned a body of established law unambiguously supporting the appellants' position so as to destroy what they could properly characterise as a legitimate expectation of being permanently immune from such claims.
"(3) Section 3 shall be treated as having always had effect.
(4) But the section shall have no effect in relation to—
(a) a claim which is settled before 3 May 2006 (whether or not legal proceedings in relation to the claim have been instituted), or
(b) legal proceedings which are determined before that date."
There were also specific provisions enabling the variation of settlements or determinations made on or after 3 May 2006 and before the date (25 July 2006) on which the Act was passed.
The effect of the 2009 Act
"(1) Asbestos-related pleural plaques are a personal injury which is not negligible.
(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.
(3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.
(4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries."
The effect of section 1 is to reverse, in relation to Scotland, the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd  UKHL 39,  AC 281 that asymptomatic pleural plaques do not constitute actionable harm. Although that was a decision in an English appeal, it was based on legal principles which are common to Scots and English law, and there can be no doubt that a Scottish case proceeding on the same factual findings would be decided, at common law, in the same way. That position is altered by subsections (1) to (3), but only in respect of pleural plaques and not in respect of any other non-harmful physiological changes. Subsection (4) preserves all other aspects of the law governing liability in damages for personal injuries.
Article 1 of the First Protocol
The status of "victim"
Interference with possessions
The lawfulness of the interference
"all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts" (para 36).
The Commission identified legal certainty as an aspect of the rule of law, and noted that legal certainty requires that the law be accessible and foreseeable in its effects. It also observed:
"Legal certainty requires that legal rules are clear and precise, and aim at ensuring that situations and legal relationships remain foreseeable. Retroactivity also goes against the principle of legal certainty, at least in criminal law (article 7 ECHR), since legal subjects have to know the consequences of their behaviour; but also in civil and administrative law to the extent it negatively affects rights and legal interests" (para 46).
"If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever."
"It is when things go wrong that the retroactive statute often becomes indispensable as a curative measure; though the proper movement of law is forward in time, we sometimes have to stop and turn about to pick up the pieces."
As I shall explain, this point has also been noted by the Strasbourg court. In particular, because judicial decisions normally operate retrospectively in accordance with the declaratory theory of adjudication, such decisions may upset existing expectations or arrangements, as Lord Nicholls of Birkenhead observed in In re Spectrum Plus Ltd  UKHL 41,  2 AC 680, paras 6 to 8:
"… from time to time court decisions on points of law represent a change in what until then the law in question was generally thought to be. This happens most obviously when a court departs from, or an appellate court overrules, a previous decision on the same point of law … A court ruling which changes the law from what it was previously thought to be operates retrospectively as well as prospectively … People generally conduct their affairs on the basis of what they understand the law to be. This 'retrospective' effect of a change in the law of this nature can therefore have disruptive and seemingly unfair consequences."
In such circumstances, retrospective legislation which restores the position to what it was previously understood to be may not be incompatible with legal certainty or the rule of law.
The aim of the interference
The proportionality of the interference
"This amounts to reading a test of strict necessity into the article, an interpretation which the Court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a 'fair balance'. Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way."
"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies."
The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances. As Lord Hope explained in R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326 at p 381, the relevant circumstances include whether, as in the present case, the issue lies within the field of social or economic policy.
Review on common law grounds – introduction
"(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament."
Section 29, so far as material, and as amended by the Treaty of Lisbon (Changes in Terminology) Order 2011, provides:
"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as any of the following paragraphs apply—
(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or with EU law,
(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland."
The language of section 29 does not imply that the matters listed there are necessarily exhaustive of the grounds on which Acts of the Scottish Parliament may be challenged.
"The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law.
Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments."
"1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.
2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires."
"… the distinction which must be made between the question of competency as to whether a decision is open to review by the Court of Session in the exercise of its supervisory jurisdiction, and the substantive grounds on which it may do so. The extent of the supervisory jurisdiction is capable of a relatively precise definition, in which the essential principles can be expressed. But the substantive grounds on which that jurisdiction may be exercised will of course vary from case to case. And they may be adapted to conform to the standards of decision-taking as they are evolved from time to time by the common law."
As that dictum makes clear, the grounds of review must be related to the nature of the power whose exercise is under review.
"But decisions of that kind – the conferring of benefits on those who are perceived to be deserving and the manner of funding of such benefits – are essentially political questions which, absent any infringement of a Convention right, a court cannot and should not enter upon."
Similarly in R v Secretary of State for the Environment, Ex p Nottinghamshire County Council  AC 240, Lord Scarman commented at p 247 that matters of political judgment were not for the judges. Law-making by a democratically elected legislature is the paradigm of a political activity, and the reasonableness of the resultant decisions is inevitably a matter of political judgment. In my opinion it would not be constitutionally appropriate for the courts to review such decisions on the ground of irrationality. Such review would fail to recognise that courts and legislatures each have their own particular role to play in our constitution, and that each must be careful to respect the sphere of action of the other.
"… the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann's dictum (in Ex p Simms) applies to fundamental rights beyond the four corners of the Convention."
The question is therefore not of purely academic significance.
"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
"A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect … the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament."
Lord Steyn said in the same case, at p 591:
"Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law."
The standing of the third to tenth respondents
The approach of the Inner House
"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies."
Lord Dunedin gave, as examples of the type of legal relation he had in mind, ownership, contract, trust and other fiduciary relationships. The relationship between the harbour trustees and their ratepayers, who included the pursuers, was regarded as falling into the last of these categories. Whether the harbour trustees complied with their statutory duties was thus treated as an essentially private matter between them and their ratepayers, with which third parties had no concern unless their property or other rights were affected.
"… the rule of law … is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available."
There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights. A rights-based approach to standing is therefore incompatible with the performance of the courts' function of preserving the rule of law, so far as that function requires the court to go beyond the protection of private rights: in particular, so far as it requires the courts to exercise a supervisory jurisdiction. The exercise of that jurisdiction necessarily requires a different approach to standing.
"Paragraph (14) envisages that interested parties may be permitted to enter the process more freely than in the case of an ordinary action and so enable the parties and the court to have the benefit in appropriate cases of the submissions of other interested parties."
The contrast drawn by Lord Clyde between standing to participate in judicial review proceedings and standing in an ordinary action is consistent with the approach which I have explained in the present case. Paragraph (14) was considered again in Casey v Edinburgh Airport Ltd (unreported) 23 February 1989, a decision of Lord Morison. The case concerned a challenge to decisions taken by the airport authority, under a bye-law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye-law itself. Lord Morison refused to consider such a challenge in the absence of intimation to the taxi operators who had been granted permits under the contested bye-law. He said:
"No intimation of the petition has been made to these persons, since in its present form it does not affect their interest … It seems to me to be clear that the argument sought to be presented by the petitioners cannot be determined in the absence of intimation to other taxi operators who have an interest to uphold the validity of the permission granted to them."
I note that in the present case the judges of the First Division stated, at para 56 of their opinion, that it had never been suggested, in cases in which the validity of a bye-law was challenged, that those who might benefit from it should be called for their interest, and that that was an important indication that a beneficiary of a general legislative measure had no title to counter a challenge to its validity. The court had not been referred to the case of Casey.
LORD KERR, LORD CLARKE AND LORD DYSON