The UK Supreme Court has held that the Scots law rules governing standing should more closely resemble that of England and Wales.
AXA General Insurance Ltd & Ors v The Lord Advocate & Ors concerns insurance companies which had undertaken to cover employers against liability for negligence seeking to challenge the lawfulness of Damages (Asbestos-related Conditions) (Scotland) Act 2009. The Act stipulates that certain asbestos-related conditions constitute personal injury and action may be taken under Scots law.
The legislation was challenged on two grounds. Firstly, that such legislation was unlawful at common law as an "unreasonable, irrational and arbitrary exercise' and that the appellants" rights were infringed subject to Article 1 of Protocol 1 of the European Convention of Human Rights.
However in order to establish locus standi or standing (the right to be heard by the court) under the Convention the claimant must demonstrate that they are a victim within the terms of the Convention. Standing issues are important because they are potentially a barrier to public interest litigants. If standing rules are applied narrowly, they can prevent a public interest issue from being heard. By definition, public interest issues affect more than one person. In addition, those affected by public interest issues are sometimes unable or not best-placed to bring a case.
Dicta from the judgment suggests that there is a lack of consistency in relation to the application of rules on standing - in some cases the approach has been quite liberal whereas in other cases, a more restrictive test has been applied. That being said, Scots law differs to the law of England & Wales in relation to standing in that the person must have "title and interest" as opposed to "sufficient interest".
However, the judges held that "title and interest" should no longer apply to judicial review, and Lord Reed held that Scots law should more closely resemble the law of England and Wales (sufficient interest) in relation to standing. Lord Hope held that the test should be that the party is "directly affected". It is yet to be seen whether and how the distinction between the two judges' assessments will be tested.
Click here to see a piece by the UK Constitutional Law Group blog with a Northern Ireland perspective on the constitutionality issues discussed in the case.
Click here to see FAQs on the PILA website about standing.