The Supreme Court has been asked to decide whether the Welsh Assembly can introduce legislation that allows the NHS to recover the cost of treating asbestos victims from negligent employers or their insurers.
It is estimated that the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, a private member’s bill introduced by former Thompsons partner and now Assembly member Mick Antoniw, will raise around £1m a year.
However, the competence of the Welsh Assembly to pass the bill – which it did in November – has been repeatedly questioned by insurers, and this week Theodore Huckle QC, the Counsel General for Wales, announced his reasons for referring it to the Supreme Court to decide.
“Before the Supreme Court I will contend strongly that the bill is within the Assembly’s legislative competence,” he said.
“However, making a reference before it receives Royal Assent enables the matter of the bill’s competence to be determined without awaiting what I consider would be the inevitable challenge in potentially far more expensive court proceedings in due course, perhaps when substantial amounts of money had been recouped under the bill’s provisions and would quite likely be subject to repayment were the decision of the courts to be adverse.
“The litigation costs of a reference being made during the intimation period are likely to be less than the costs of any challenge brought once the bill is enacted under the usual judicial review procedure, as Supreme Court rules provide that orders for costs will not normally be made either in favour of or against interveners [such as the Association of British Insurers].
“It is in my view in the public interest for me to take the initiative in seeking the Supreme Court’s decision on the bill as it stands.”
The Welsh initiative has raised questions as to why the Westminster Parliament does not introduce a similar measure for England.