Whaley v Lord Watson: SCS 16 Feb 2000

The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise available. There is a remedy against a member in respect of wrongs which only a member could commit, but which the Parliament could not commit. Even so, remedies could only be retrospective not prospective. A member cannot be prevented from promoting a Bill.
Lord President Rodger said: ‘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.’
Lord President Rodger, Lord Prosser, Lord Morison
Times 21-Mar-2000, [2000] ScotCS 41, 2000 SCLR 279, 2000 SC 340
Bailii, ScotC
Scotland Act 1998
Cited by:
CitedAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .

These lists may be incomplete.
Updated: 06 January 2021; Ref: scu.163781