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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 16
A76/20
OPINION OF LADY CARMICHAEL
In the cause
MARTIN JAMES KEATINGS
Pursuer
against
(FIRST) ADVOCATE GENERAL FOR SCOTLAND AND
(SECOND) THE LORD ADVOCATE
Defenders
Pursuer: O'Neill QC, Welsh; Balfour and Manson LLP
First Defender: Johnston QC, Webster QC, Pirie; OAG
Second Defender: Mure QC, C O'Neill QC (sol adv); SGLD
5 February 2021
Introduction
[1]
The pursuer seeks two declarators:
(1)
that the Scottish Parliament has power under the provisions of the Scotland
Act 1998 to legislate for the holding of a referendum on whether Scotland should
be an independent country, without requiring the consent of the United
Kingdom Government or any further amendment, by the Union Parliament, of
the Scotland Act 1998 as it stands and;
2
(2)
that the Scottish Government's proposed Act of the Scottish Parliament
concerning an independence referendum contains no provision which, if passed
by the Parliament, would be outside its legislative competence.
[2]
The Scotland Act 1998 is referred to as "the 1998 Act" in this opinion, and references
to sections are, unless otherwise stated, to the sections of the 1998 Act.
[3]
The proceedings are in the form of an ordinary action for declarator. By interlocutor
of 4 November 2020 I appointed the cause to the procedure roll for debate. The defenders
seek to have the action dismissed on the basis of certain preliminary pleas. The pursuer
seeks decree de plano in terms of his first conclusion.
[4]
Both defenders say that the court should decline to consider the pursuer's
substantive case that, as a matter of law, he is entitled to declarator. They advance a number
of preliminary pleas, to the effect that the pursuer lacks standing, that the action is
hypothetical and premature, that the action is incompetent, and that it would, for a variety
of reasons, be wrong as a matter of constitutional law for the court to grant the declarator
the pursuer seeks. The first defender has offered submissions on the pursuer's substantive
case, but the second defender has not. The pursuer says that he is a campaigner for Scottish
independence. He pleads that as a campaigner, and as a voter in the forthcoming Scottish
Parliamentary elections, he has a sufficient interest to give him standing to seek the orders
that he does. He says he and other campaigners and voters need to know the legal position
before the election, in order to determine how to campaign, and how to cast their votes.
[5]
On 30 July 2020 Lady Poole refused the pursuer's application for a protective
expenses order: Keatings v Advocate General for Scotland and others 2020 CSOH 75.
[6]
The Scottish Ministers initially lodged defences, as the third defender in the action.
They moved to withdraw those defences, and the motion was granted on 17 August 2020.
3
On a number of occasions after the Scottish Ministers withdrew defences, the pursuer
commented on what he described as the "unconstitutional ambiguity" of the second
defender's position in the action, and called on him to clarify whether he was representing
the Scottish Government, of which he was a member (Scotland Act 1998, section 44); or
appearing in the public interest and as the appropriate constitutional defender of the powers
of the Scottish Parliament.
[7]
The second defender confirmed in written and oral submissions at the procedure roll
debate that his interest in defending these proceedings was, acting in the public interest, to
advance legal submissions directed to ensuring the proper interpretation and operation of
the law as it bears on the constitutional structures created by the 1998 Act. His position was
that it would not be legally sound for the court to be drawn into expressing any view, in
anticipation of a bill, on the questions of legislative competence posed by the conclusions of
the summons.
[8]
The reference to the "proposed act of the Scottish Parliament" in the second
conclusion is to a document first referred to in the pleadings by the second defender in a
minute of amendment. He averred that "The Scottish Government has indicated its
intention to publish a draft bill before the end of the current parliamentary session (which is
anticipated to be 21 March 2021)." The reference to a draft bill comes in turn from a
document entitled "Protecting Scotland, Renewing Scotland" published by the Scottish
Government in September 2020, and described in the second defender's inventory as "the
programme for government". An extract from it is 18/1 of process. All parties refer to it in
the pleadings. It contains the following statement:
"The Scottish Government has a democratic mandate in this Parliament to offer the
people of Scotland their right to choose a future as an independent country in which
decisions about Scotland are taken by the people who live here. In 2014, shortly
4
before the referendum of that year, the political leaders of the campaign against
Scottish independence affirmed an important principle when they collectively
agreed:
`Power lies with the Scottish people and we believe it is for the Scottish people to
decide how Scotland is governed.'
The right of people in Scotland to decide their own future was also unanimously
acknowledged in the Smith Commission report of November 2014 which said: `It is
agreed that nothing in this report prevents Scotland becoming an independent
country in the future should the people of Scotland so choose.'
In line with its mandate, constitutional precedents and agreed allparty principles,
the Scottish Government sought an agreement on an order under Section 30 of the
Scotland Act 1998 to place a referendum on independence beyond legal challenge.
The Scottish Parliament has already passed into law the Referendums (Scotland) Act
which sets out the framework, campaign rules and conduct of polls and counts for
any referendum that is within devolved competence. A future independence
referendum would apply these rules. Under the terms of the Referendums
(Scotland) Act, a further Act of the Scottish Parliament is required setting the
question to be asked and the date of the poll before a referendum can be held.
Because of the pandemic the Scottish Government paused work on independence
and it will clearly not be possible to organise and hold an independence referendum
that is beyond legal challenge before the end of the current Parliamentary term next
year.
However, before the end of this parliament, to set out the terms of a future
referendum clearly and unambiguously to the people of Scotland, the Scottish
Government will publish a draft bill for an independence referendum setting out the
question to be asked, subject to appropriate testing by the Electoral Commission, and
the timescale in which, within the next term of Parliament, we consider the
referendum should be held taking account of the development of the COVID-19
pandemic at the time of publication, and ensuring the flexibilities to respond to any
further restrictions caused by it.
If there is majority support for the bill in the Scottish Parliament in the next term,
there could then be no moral or democratic justification whatsoever for any UK
government to ignore the rights of the people of Scotland to choose our own future."
[9]
The pursuer twice sought recovery of the "draft bill" and other associated
documents by means of a motion for commission and diligence, first on 30 September 2020,
and then again on 12 January 2021. On both occasions I refused to grant the motion. I
record elsewhere in this opinion the arguments of parties and the reasons for my decisions
5
on those motions. After my decision on 12 January senior counsel for the pursuer asked me
to record my reasons in the Minute of Proceedings. I indicated that I would in this opinion,
following the debate, set out those reasons, along with a reasonably full narration of the
procedural history of the case. That seemed to me the preferable course, in the interests of
open justice. The procedural history of the case between 30 September 2020 and 12 January
2021 forms an appendix to this opinion.
[10]
At the debate, parties were agreed that there should be a departure from the practice
whereby the defenders spoke first in support of all their preliminary pleas. Senior counsel
for the pursuer spoke first in support of his preliminary plea for decree de plano, and in
response to the defenders' preliminary pleas. All parties had lodged written notes of
argument, and thereby had provided detailed notice of their positions. The order in which
matters are addressed in this opinion does not reflect the order in which oral submissions
were made.
The defenders' preliminary pleas
[11]
The first defender's pleas in law focused contentions that the proceedings were
academic; incompetent; and premature; that the pursuer lacked title, interest and standing;
and that it was contrary to the constitutional principle of the separation of powers to grant
the declarators sought. The second defender advanced similar contentions under reference
to pleas that the pursuer lacked title, interest or standing; that the issues the pursuer raised
were academic and hypothetical; that the case was in reality an application to the
supervisory jurisdiction; that the declarators sought were vague and uncertain; and that to
grant the declarators sought would be inconsistent with the structures established by the
1998 Act. The second defender's final plea in law is unusual, and I quote it in full:
6
"Esto the Court were to consider that the action ought to proceed as an application to
the supervisory jurisdiction of the Court, no order in terms of rule 58.15(1) should be
made because (i) the pursuer would lack a sufficient interest in the subject matter of
the application and (ii) the application would have no real prospect of success
(section 27B(2) of the Court of Session Act 1988) because (a) no live question arises at
this time which calls for the Court's determination (see Answers 4 and 5); (b) the
Court should not express views on legislative competence in the abstract (see
Answers 6 & 17); and (c) for the Court to do so would not be consistent with the
constitutional structures established by the Scotland Act 1998 (see Answers 4 and 6)."
[12]
The second defender does not advance submissions on the relevancy of the pursuer's
substantive case. His position is that it would be constitutionally wrong for the court to
entertain those arguments.
[13]
The first defender moved also his preliminary plea to relevancy and specification.
He did so in relation to the pursuer's positive case regarding the legislative competence of
the Scottish Parliament. I deal with that elsewhere in this opinion.
First defender's submissions
[14]
The first defender raised the preliminary issues foreshadowed in his first to fourth
and fifth to ninth pleas in law. On the basis of these he asked the court to refrain from
reaching a view on the substantive issue raised by the pursuer. If the court were justified in
reaching a view on it, the pursuer's interpretation of the 1998 Act was wrong. If I were
satisfied that the action fell to be dismissed as a result of the defenders' preliminary pleas, I
should not express any view on the merit or otherwise of the pursuer's positive case.
[15]
It was the function of the court to determine, where necessary, where the limits of
powers lay: R (Miller) v Prime Minister [2020] AC 373 ("Miller 2"), paragraph 38. It was not,
however, necessary for the court to decide where the limits of the Scottish Parliament's
powers lay in this action. There was no unqualified right to seek a ruling from the Court on
an issue of law: Wightman v Secretary of State for Exiting the European Union 2019 SC 111,
7
paragraphs 22, 55. Actions seeking declarators that had no practical effect were hypothetical
or academic, and incompetent: Wightman, paragraphs 22, 27. The present action was
therefore incompetent.
[16]
The 1998 Act provided a scheme for determining before Royal Assent whether a
proposed Act would be within the powers of the Scottish Parliament. The conditions for an
act were that a bill be passed by the Parliament, and that it receive Royal Assent on
submission by the Presiding Officer: sections 28(2) and 32. By the time of the introduction
of the bill in the Parliament, the person in charge of it must state that in his view its
provisions would be within the Parliament's legislative competence, and the Presiding
Officer must do likewise: section 31(1), (2). After introduction, a bill would pass through
various stage, at the last of which MSPs would decide whether to pass it: section 36(1).
[17]
After the bill was passed, a law officer might refer the question of whether it or any
of its provisions would be within legislative competence of the Parliament to the Supreme
Court: section 33(1) and (2). The Presiding Officer might not submit the bill for Royal
Assent while a law officer's reference was pending or in its unamended form if the Supreme
Court had decided, on a law officer's reference, that the bill or any of its provisions would
not be within the legislative competence of the Parliament: section 32(2),(3)(a).
[18]
The pursuer did not aver that a bill for a referendum on whether Scotland should be
an independent country had been or would be introduced in the Scottish Parliament. The
court could not assume that a bill would ever be introduced.
Sufficient interest
[19]
The pursuer's qualification to request the declarators fell to be determined under the
common law test, namely whether he had sufficient interest, relevant to public law
8
applications to the supervisory jurisdiction, rather than the private law test of title and
paragraphs 58, 62, 159, 169, 171; Wightman paragraphs 24, 26. The essence of sufficient
interest was that the party was "directly affected". The qualification "directly" created the
necessary distinction between a mere busybody, and a person affected by or having a
reasonable concern in the matter to which the application related: AXA, paragraph 63;
someone who interfered in something with which he had no legitimate concern: Walton,
paragraph 92. A personal interest need not be shown if an individual was acting in the
public interest and could genuinely say that the issue directly affected the section of the
public that he sought to represent: AXA, paragraph 63. The type of interest required varied
with the context and what would best serve the purpose of maintaining the rule of law:
AXA paragraphs 169 - 170; Walton, paragraphs 90, 94. Relevant considerations included
whether denial of the right to bring proceedings would prevent the matter from being
brought before the court or vindication of the rule of law: AXA, paragraph 170, Walton,
paragraph 93. The rule of law did not require that every allegation of unlawful conduct by
public authority must be examined by a court: AXA, paragraph 170. Wightman involved a
"liberal" exercise of the court's jurisdiction to declare what the law was. The court had,
however, been discriminating as to standing, in finding positively only that MPs had
sufficient interest in the matter. Although the pursuer was a voter, there were limits to
when a voter could come to court, particularly where no unlawful act was alleged. The
court's role was not to advise campaigners: Vince v Advocate General 2020 SC 90,
paragraph 10.
9
[20]
The pursuer failed the sufficient interest test. He was a busybody. The 1998 Act left
it to the Scottish Parliament to determine its own policy goals and other considerations
relevant to the exercise of its powers. The pursuer was not directly affected by the subject
matter of the action, because the action was about whether a body of which he was not a
member had a power that it was not proposing to use. For similar reasons, he did not
represent anyone who was directly affected. The only people with sufficient interest before
Royal Assent were those exercising the powers and duties conferred by the 1998 Act.
[21]
The rule of law did not require the action to proceed. No legislation was proposed.
If it were, the scheme in the 1998 Act provided for the rule of law to be vindicated, including
by law officers in the public interest without any need for the present action: Walton,
paragraph 153, Keatings, paragraph 15 - 16. If the action were to proceed it would do
mischief to the rule of law, as it would undermine a scheme prescribed by Parliament for the
assessment of whether a proposed act of the Scottish Parliament was within its legislative
competence.
[22]
The pursuer did not claim any knowledge of the 1998 Act or the constitution that
would qualify him to ask the court to rule on the powers of the Scottish Parliament: Walton,
paragraph 153. He could not cure a lack of interest by calling himself a campaigner or
claiming support from other people who also lacked sufficient interest: R (Ewing) v Office of
the Deputy Prime Minister [2006] 1 WLR 1260, paragraphs 1, 37. Informed by the legal advice
he had obtained, he was free to campaign for the Scottish Parliament to legislate for the
holding of a referendum on whether Scotland should be an independent country.
10
Academic question
[23]
The action was academic; the declarators sought would have no real practical effect.
There was no bill - either a government or a member's bill - that had been introduced. The
current Scottish Government's policy on a referendum on Scottish independence was not to
hold one before the elections to the Scottish Parliament due to be held on 6 May 2021; and to
"publish a draft bill" (rather than introduce a bill in the Scottish Parliament) before those
elections. The first defender made those submissions under reference to the content
of Protecting Scotland, Renewing Scotland. Depending on the outcome of the elections, it was
the Scottish Government's policy to seek to obtain an order under section 30 modifying the
1998 Act to give the Scottish Parliament the power to legislate for one. The first defender so
submitted by reference to the content of defences that the Scottish Ministers had lodged (but
later withdrawn) in the present action.
[24]
Second, the action served no practical purpose because the declarator was abstract.
There was no act of the Parliament test by reference to whether it related to reserved
matters. Section 29(3) provided that the question whether a provision was outside
legislative competence for that reason "is to be determined...by reference to the purpose of
the provision, having regard (among other things) to its effect in all the circumstances".
Those circumstances included the ones revealed by the bill and the background materials to
the bill, such as papers that preceded introduction, explanatory notes, policy memoranda:
Martin v Most 2010 SC (UKSC) 40, paragraph 25. Neither any bill nor those materials was
available to the court in this action. The court could not rule on the purpose or effect of a
provision if it had no provision to consider. If the Scottish Parliament did intend to legislate
for a referendum on Scottish independence, the question whether the intended legislation
related to a reserved matter would have to be considered when any such bill was introduced
11
or passed. The same applied to the question whether legislation was outside legislative
competence for any other reason. The court could not affirm legislation that it had not seen.
[25]
Third, the action was analogous to Wightman before the notification of withdrawal:
paragraph 59.
[26]
The second declarator served no purpose because the "proposed Act of the Scottish
Parliament" did not exist.
Prematurity
[27]
The action, if not academic, was premature. The court had nothing to assess for
legislative competence: Reference by the Attorney General for Northern Ireland of devolution
issues to the Supreme Court pursuant to Paragraph 34 of Schedule 10 to the Northern Ireland
Act 1998 (No 2) (Northern Ireland) [2019] UKSC 1, paragraph 28; Keatings at paragraphs 16
and 18. The court lacked the material to carry out the assessment. It was too soon to know
whether the issue required to be determined by the court. There would be no legislation
without a bill, and the procedures in sections 31 to 33 might resolve the issue.
[28]
The effect of the scheme of provisions in the 1998 Act for determination of the
legislative competency of an act prevented the court from entertaining the action: Keatings,
paragraphs 16 - 17. Those provisions made the action unnecessary. The constitutional
function of the court in the field of public law was to ensure that public authorities respected
the rule of law. The court could discharge that function before Royal Assent under
section 33(1) and (2). This also defeated the pursuer's reliance on criminal offences created
by the Referendums (Scotland) Act 2020: the question whether a referendum was intra vires
would have be to be tested (a) in relation to the specific question which it is proposed the
12
referendum should ask and (b) under the procedures set out in section 33 of the Scotland
Act.
[29]
Second, they provided for the procedures that the UK Parliament intended to be
followed in working out before Royal Assent if a proposed Act of the Scottish Parliament
would be within its legislative competence. The correct interpretation of the provisions was
that those procedures were (implicitly) exclusive, and therefore that the action was contrary
to the 1998 Act. Alternatively, if the procedures were not exclusive, the common law basis
for refusing a declarator on the ground of there being an alternative remedy (eg MIAB v
Secretary of State for the Home Department 2016 SC 871, paragraph 73) applied by analogy.
Chaos would result if applications of the present sort were to co-exist with the statutory
scheme.
[30]
Third, a decision on the merits in this action would be contrary to the separation of
powers. The separation of powers was a constitutional principle: Miller 2, paragraph 40.
The courts should not interfere with the proceedings of the legislature: R (Wheeler) v Office of
court to grant a remedy that did so: Maugham, Petr 2019 SLT 1313, paragraph 22. A decision
by the court that the Scottish Parliament did or did not have the power to legislate for a
referendum on Scottish independence would intrude on the performance by the person in
charge of a bill proposing such legislation of his duty under section 31(1); the performance
by the Presiding Officer of his duty in relation to that bill under section 31(2); and the MSPs'
decision whether to pass that bill under section 36(1): Maugham, paragraph 22; R v HM
Treasury, ex parte Smedley [1985] 1 QB 657 at 667B - C and 672B - G.
13
Terms of declarators
[31]
An action for declarator was incompetent unless the declarator sought is precise and
unambiguous in its terms: Aberdeen Development Co v Mackie, Ramsay & Taylor 1977 SLT 177
at 181. The first defender asked, rhetorically, by way of submission, what was meant by a
"referendum on whether Scotland should be an independent country", and what was the
power "to legislate for the holding of" that referendum? He queried whether that meant any
legislation. The second declarator was not precise because it was not clear what the Scottish
Government's proposed Act of the Scottish Parliament was.
Second defender's submissions
[32]
The submissions of the second defender in support of his preliminary pleas were
largely similar to those of the first defender. I set out in more detail only those areas in
which the second defender said something more than, or different from, the first.
The 1998 Act
[33]
In addition to submissions about the effect of the provisions of the 1998 Act on the
jurisdiction of the court as to legislative competency prior to Royal Assent, the second
defender submitted that it was open to individuals to challenge legislation after it had been
brought into force, as in Christian Institute v Lord Advocate 2017 SC (UKSC) 29. The second
defender drew attention not only to the provisions of the 1998 Act, but those of Chapter 9 of
the Standing Orders of the Scottish Parliament. The jurisdiction of the Supreme Court in a
reference by a law officer was limited to determination of legislative competence, and did
not include wider common law grounds for review that might be available post-assent:
UK Withdrawal from the Continuity (Scotland) Bill, paragraph 26. That supported the
14
proposition that no court other than the Supreme Court had jurisdiction to consider the
competence of a bill before Royal Assent.
[34]
The powers of the court in proceedings against the Parliament itself were strictly
limited: section 40; Whaley v Lord Watson of Invergowrie 2000 SC 34.
Hypothetical/premature
[35]
There were reasons of policy as well as constitutional principle why the court should
not adjudicate where that would not determine a live issue directly or indirectly affecting
the rights of a party: R v Secretary of State for the Home Department ex parte Wynne
paragraph 53; Turner's Trs v Turner 1943 SC 389.
[36]
The policy set out by the Scottish Government in Protecting Scotland, Renewing
Scotland did not alter the position of the second defender as to why the court should decline
to entertain the action.
[37]
The prematurity plea would fall to be sustained even if the pursuer were in a
position to proffer a draft bill, or even if a bill were pending before the Scottish Parliament.
Any proceedings before a bill received Royal Assent would be premature.
Proceedings in substance an application to the supervisory jurisdiction of the court
[38]
While the first defender characterised the jurisdiction being invoked as "a standalone
jurisdiction to pronounce a declarator advising as to the law", the second defender
submitted that the pursuer was in substance making an application to the supervisory
jurisdiction of the court. This was not a "technical" plea. Parliament had imposed particular
procedural requirements on such applications, and the observance of the correct procedures
15
was essential to the orderly progress of litigation: Wightman v Advocate General for
[39]
The pursuer did not identify any legal right or interest that the defenders were
infringing, or which required clarification; proceedings brought by summons generally
involved the vindication of a legal right: AXA, Lord Reed, paragraphs 159, 161. He was
inviting the court to determine a question of vires, albeit an abstract one, namely the extent
of the legislative competence of the Scottish Parliament. The jurisdiction was not that
exercised by the court in Wightman. If the court were to consider that the proceedings
should be treated as a petition for judicial review, it should conclude that the requirements
of permission in terms of section 27B(2) of the Court of Session Act 1988 were not satisfied.
Pursuer's submissions
[40]
Senior counsel, in the course of his submissions in support of his preliminary plea for
decree de plano, made submissions about the constitution of the United Kingdom that I
understood to support not only that plea, but his response to the defenders' preliminary
pleas. Those submissions are summarised elsewhere in this opinion.
[41]
The preliminary pleas that that court was being asked to reach a decision in the
present case in a manner inconsistent with the constitutional structures established by the
1998 Act were without merit. The Supreme Court in AXA General Insurance Limited v
standalone constitutional framework document which, within the four corners of its text,
definitively and completely sets out the powers, duties and obligations of the Scottish
Parliament or the bases upon which and by whom these might be determined by the court:
Lord Reed, paragraphs 136-139, 142, 150, citing with approval Whaley v Lord Watson of
16
Invergowrie 2000 34, Lord President (Rodger) at 348, 349. There was no basis for the
proposition that before Royal Assent questions of legislative competence were exclusively
for those persons identified by the 1998 Act as having a relevant interest in the proposed
legislation, and exercising powers conferred by the act. Similarly there was no basis for the
propositions that the provisions were implicitly exclusive, or that they constituted an
alternative remedy. The processes for which provision was made in the 1998 Act excluded
the pursuer, and would come too late for him, as they could be used only after he had cast
his vote for the May 2021 Scottish Parliamentary elections.
[42]
The second defender's submissions as to the significance of section 40 were not
supported by the analysis of the Lord President in Whaley at 349H to 350D, and
Lord Prosser, concurring, at 357F-358E.
[43]
The current Scottish Government had made the legal question of whether the
Scottish Parliament had power to legislate for an independence referendum a central
election issue. There was a dispute between the Scottish Government and the UK
Government about that. Any suggestion that the legal issue should be clarified after the
election risked fraud on the electorate. It was not properly open to the Scottish Government
to campaign for re-election on the basis that, if re-elected to power, it would purport to act
beyond the limits of the powers imposed on it by law. That was contrary to the principle of
the rule of law.
[44]
The defenders' preliminary arguments amounted to an assertion that the public
should accept that it was not their role to question politicians. The ultimate arbiter of
political accountability was the vote from individuals in Scotland at elections. The pursuer,
as a campaigner and as a voter, was entitled to seek an answer to the specific legal question
of whether the route that was being proposed by a significant proportion of those in favour
17
of Scottish independence was a legally viable route. The answer to that question informed
the campaigning and the pressure placed by that campaigning on the elected politicians.
[45]
Without the answer sought by declarator in this action, the pursuer would be faced
with suggestions that the proposed route was "riven with legal pitfalls". The Scottish public
were entitled to go into an election, knowing whether those pitfalls existed so that the
election votes were cast in full knowledge of the law. It was not appropriate in a modern
democratic society to require voters to cast their votes where there was a "known and
wholly fundamental legal ambiguity" within the issue "that without doubt [would] be the
central issue of the upcoming elections to the Scottish Parliament."
[46]
The decision of the First Division in Wightman v Secretary of State for Exiting the
European Union, 2019 SC 111 was one to pronounce an advisory declarator of law. It
entertained the proceedings, and provided a remedy, although the UK Government's stated
position was that even if the notice could be unilaterally withdrawn it would not be, and in
circumstances in which there was no vote contemplated or ever initiated before the UK
Parliament requiring the UK Government to withdraw its notice.
[47]
The action was not premature. No government bill could be introduced without a
statement in terms of section 31(1). It was the legal accuracy of that claim that the pursuer
required to have determined in order to cast his vote on the basis of proper information.
There was a real question of law for the court to consider to allow voters to exercise their
rights and responsibilities as voters. The pursuer had standing as a voter in the forthcoming
election. He referred to Crotty v An Taoiseach [1987] IR 713 which affirmed the standing of
an individual citizen to challenge the planned actions of the Irish Government to enter into,
ratify, and incorporate into Irish law changes in the European Treaties without a
referendum.
18
[48]
The action was not hypothetical. There was a live dispute. The Scottish Government
intended to publish a draft bill, and there would be little time available to campaign to
support it, or raise concerns as to its lawfulness.
[49]
The action had neither the purpose nor effect of binding the hands of the Scottish
Government or giving advice to it. No government or legislature was bound to act or
refrain from acting in a particular way as a result of the action. It did not breach the
separation of powers. To insist that the courts might become involved after an action is
taken was to take a view of public law in Scotland which is not consonant with the current
understanding of the constitution, or with the decision in Wightman. The pursuer sought
legal certainty prior to the holding of any such referendum so as to prevent the
constitutional paralysis which would result from a retrospective determination that an
already-held referendum was outwith the legislative competence of the Scottish Parliament.
Members of the democratically elected Scottish Parliament - who were accountable to the
Scottish electorate, among them, the pursuer - had to know, in advance of making such a
determination, whether such actions would be intra vires.
[50]
In the course of oral submissions senior counsel placed some emphasis on the
difficulty for MSPs of raising the issue in litigation themselves. In the absence of a
protective expenses order, they risked insolvency if faced with awards of expenses against
them. He submitted that the expenses would run into "six figures". I note that that estimate
is in line with an estimate of expenses produced in the pursuer's third inventory of
productions for the purposes of the application for a protective expenses order. The
question raised by the pursuer was one of law and was for the court. It did not involve
interference by the court on matters of policy.
19
[51]
Schedule 6 to, and sections 35 and 36 of, the Referendums (Scotland) Act 2020
created a set of criminal offences which applied when a referendum was being held
throughout Scotland in pursuance of any provision made by or under an Act of the Scottish
Parliament. Criminal liability for such offences was predicated and conditional on the
intra vires nature of the referendum to which they are being applied. Certainty as to whether
a referendum was lawful would be required otherwise there would be doubt as to whether
particular conduct would attract penal sanctions.
[52]
The proceedings had correctly been initiated by summons, rather than petition for
judicial review, in accordance with the approach of the Lord President in Wightman, at
paragraphs 21 and 26. Public authorities ought not to engage in litigation tactics designed to
avoid or delay the determination of the merits of public law cases: Taylor v Scottish
[53]
Courts had in the past pronounced advisory declarators on the law as it would apply
prospectively, rather than a limited statement of the law as it was being applied in order to
resolve a specific dispute: Napier v Scottish Ministers 2005 SC 307; Davidson v Scottish
Ministers 2006 SC(HL) 41; R (Freedom and Justice Party) v Secretary of State for Foreign and
[54]
The pursuer had standing. The questions for the court were whether the declarator
was designed to achieve a practical result, and whether the legal question posed was in
dispute. If the answers to those were in the affirmative, the action was not hypothetical or
academic, and the pursuer had standing. I do not repeat here all of the detailed written
submissions that the pursuer produced on these matters. I take pro veritate his averments
about the activities in which he engages as a political campaigner and activist.
20
[55]
There was a dispute as to whether the Scottish Parliament had power to legislate for
a referendum on Scottish independence. The pursuer, those supporting him and all voters
in Scotland had a constitutional right to know the correct position in law. It would be
directly relevant to the decision of every individual in how to cast their votes in the
forthcoming May 2021 elections to the Scottish Parliament. The First Division had
repeatedly emphasised the essential role which courts play in a democracy in clarifying the
law on issues of constitutional importance in order to allow the machinery of democracy
properly to function: Wightman, Cherry. The defenders' arguments that the 1998 Act
excluded legal issues as to the extent of the Scottish Parliament's legislative competency
being brought before the court by ordinary members of the public betrayed a
misunderstanding of the sovereign role of the people in democracy and a misunderstanding
of the court's constitutional role.
[56]
The pursuer set out in his written argument a series of statements by the Prime
Minister and the First Minister with a view to demonstrating the existence of a dispute. It is
the position of the United Kingdom government that the Scottish Parliament does not have
that power. The Lord Advocate does not advance any contention in relation to that
question. The Scottish Ministers are no longer a party to this action. I do not know what
they might contend about the extent of the legislative competence of the Scottish Parliament.
For the reasons that I set out at paragraph 128 I do not require to come to a view as to the
nature or extent of dispute between the administrations, or the intentions of the Scottish
Government, in order to determine whether I ought to consider the substantive matters
raised by the pursuer.
[57]
The terms of the declarators sought were not too vague. They sought to make it
plain that the Scottish Parliament had power under the 1998 Act, as amended, to legislate for
21
and hold a referendum on Scottish independence without requiring the consent of the UK
Government. The terms of the first declarator directly reflected the terms of section 1(2) of
the Scottish Independence Referendum Act of 2013.
Legislative competence - the pursuer's positive case
Pursuer's case
[58]
Senior counsel made submissions regarding the history of the constitution, and in
particular regarding the extension of the franchise over a prolonged period. The
constitution had never been fixed. The United Kingdom was a relatively new country,
constitutionally. The present policy existed because of the changes that had occurred in
the 1920s in the governance of Ireland: the Government of Ireland Act 1920, the Irish Free
State (Agreement) Act 1922, the Irish Free State Constitution Act 1922 and in particular the
option exercised by the Parliament of Northern Ireland in terms of Article 12 of the
1921 Treaty between Great Britain and Ireland. The constitution was recent and modern,
and had evolved from a sectarian oligarchy into a democracy. He submitted that the arc of
the constitution bent towards democracy, and that the tendency was most pronounced in
the devolved administrations in Scotland and Wales, with the extension of the franchise in
the Scottish Elections (Franchise and Representation) Act 2020, and the Senedd and Elections
(Wales) Act 2020.
[59]
Ecclesiology both embodied and reflected the early modern age's approach to
constitutionalism. Whereas England had been episcopal, monarchical and Erastian,
Scotland had always subscribed to a "two kingdom" theory, in which church and state were
separate, and the king was regarded as "God's silly vassal", a quotation attributed to
Andrew Melville (1545-1622). Senior counsel referred in passing also to Buchanan's De jure
22
regni apud Scotos (1579); power was held on trust for the people, was never ceded
irrevocably by them, and was always limited. The Scottish constitutional tradition was
opposed to elective dictatorship, in which all power was ceded to institutions. This tradition
had not been altered by the 1707 Union: MacCormick v Lord Advocate 1953 SC 396,
Lord President (Cooper) at 411. Legal theory must give way to practical realities in a way
that was incompatible with a classically Diceyan conception of Parliamentary sovereignty:
Supreme Court had affirmed in Cherry the enforceability of the constitution by the courts.
[60]
The court was the guardian of democracy. The submission for the defenders
reflected a neo-Diceyan vision of the constitution. Democracy was founded on the principle
that each individual had equal value; it valued everyone equally, even if the majority did
not: Ghaidan v Godin Mendoza [2004] 2 AC 557, Baroness Hale, paragraph 132.
[61]
The United Kingdom was the creation of predecessor Parliaments of the predecessor
nations which united to form it. Senior counsel referred to the Union with Scotland Act 1706
of the English Parliament; the Union with England Act 1707 of the Scottish Parliament; the
Union with Ireland Act 1800 of the British Parliament; the Union with Great Britain
Act 1800 of the Irish Parliament; the Treaty of 1921 and the Acts of 1922 already referred to;
and the Ireland Act 1949. As a matter of UK constitutional law, a union of the constituent
nations might be brought to an end by a constitutional process duly mandated by and
consistent with the UK's own constitutional law and with public international law. Any
statement of permanency was one of political aspiration rather than binding obligation.
[62]
The Scottish Parliament was a democratically-elected legislature, and its powers to
pass legislation were limited by law (section 29 and Schedules 4 and 5 to the 1998 Act); it
did not enjoy the sovereignty of the Crown in Parliament: AXA General Insurance Ltd v
23
on the UK withdrawal from the EU (Legal Continuity) (Scotland) Bill 2019 SC (UKSC) 13,
paragraph.
[63]
Section 63A(1) of the 1998 Act (inserted by the Scotland Act 2016) provided: "(1) The
Scottish Parliament and the Scottish Government are a permanent part of the United
Kingdom's constitutional arrangements". Section 63A(3) declared "that the Scottish
Parliament and the Scottish Government [were] not to be abolished except on the basis of a
decision of the people of Scotland voting in a referendum".
[64]
Although the devolved Scottish Parliament was created by act of Parliament, it did
not follow that the Scottish Parliament owed its legitimacy to Parliament (or indeed the UK
Government). It derived its legitimacy from its accountability to the electorate (one now
determined by the provisions of Scottish Elections (Franchise and Representation) (Scotland)
Act 2020). The 1998 Act was an essential element of the architecture of the modern United
Kingdom, and a constitutional statute: Somerville v Scottish Ministers 2008 SC (HL) 45.
Lord Mance, paragraph 169; R (Privacy International) v Investigatory Powers Tribunal
[2019] 2 WLR 1219, Lord Carnwath, paragraph 120. Its provisions were not subject to implied
repeal by later non-constitutional Acts of Parliament: BH v Lord Advocate 2012 SC
(UKSC) 308, Lord Hope, paragraph 30.
[65]
Regular elections and occasional referendums were among the measures that are
required in order to ensure the ongoing accountability and legitimacy of a legislature. The
1998 Act included a power to hold referendums which included power to hold a referendum
on whether Scotland should be an independent country.
[66]
Schedule 5 contained general reservations to the UK Government of matters outwith
the legislative competence of the Scottish Parliament, including - at paragraph 1(b) in Part I,
24
under the heading "the Constitution" - "[t]he following aspects of the constitution are
reserved matters, that is ... (b) the Union of the Kingdoms of Scotland and England".
[67]
Senior counsel referred to statements made during Parliamentary debates in 1998 in
relation to the Scotland Bill regarding that reservation. The then Secretary of State for
Scotland, Donald Dewar MP, had said in the House of Commons:
"If one assumed that [a referendum] is a way of changing the constitution, no, it is
not in the power of the Scottish Parliament to change the constitutional
arrangements. [...] A referendum that purported to pave the way for something that
was ultra vires is itself ultra vires. That is a view that I take and one to which I will
hold. But, as I said, the sovereignty of the Scottish people, which is often prayed in
aid, is still there in the sense that, if they vote for a point of view, for change, and
mean that they want that change by their vote, any elected politician in this country
must very carefully take that into account. [...] It is my view that matters relating to
reserved matters are also reserved. It would not be competent for the Scottish
Parliament to spend money on such a matter in those circumstances."
[68]
Lord Mackay of Drumadoon, the then Conservative Shadow Lord Advocate advised
the House of Lords of his view on the same provisions:
"I believe that it would be perfectly possible to construct a respectable legal
argument that it was within the legislative competence of the Scottish parliament to
pass an Act of Parliament authorising the executive to hold a referendum on the
issue of whether those who voted in Scotland wished Scotland to be separate from
the UK. It would be perfectly possible to construct an argument that it would assist
members of the Scottish parliament in the discharge of their devolved legislative and
executive duties to be aware of the thinking of Scottish people on that very important
issue. [...] But I remain convinced that the law on this matter should be clarified. If
it is not then the festering issue as to whether the Scottish parliament is competent to
hold such a referendum will rumble on."
[69]
Senior counsel maintained that he was entitled to rely on those statements.
Parliamentary privilege did not protect statements from being referred to before the courts:
paragraphs 16-17, 31. It could not be invoked to prevent the courts from carrying out their
constitutional function: Whaley v Watson, 2000 SC 340; Craig v Advocate General for
25
[70]
A referendum which led to something which would be ultra vires was not in itself
ultra vires. The holding of a referendum did not implement the result or outcome of that
referendum. A referendum was not the triggering of a bullet which was inevitably going to
"hit the target of a dissolution of the Union": R (Miller) v Secretary of State for Exiting the
Neither a referendum on Scottish independence, nor a decision in a referendum in favour of
it would be an act of secession, or automatically result in the dissolution of the Union. Any
attempt to dissolve it would necessarily involve complex and lengthy negotiations.
[71]
If the first defender meant to introduce by his reference to the interest of the people
of the United Kingdom in whether the Union was dissolved an argument as to who should
be enfranchised in any future referendum, that was a matter for political judgment, and
irrelevant to the present action.
[72]
The goal of statutory interpretation was to discover the intention of the legislation
and that intention is to be gathered from the words used by Parliament, considered in the
light of their context and their purpose: R (Black) v Justice Secretary [2018] AC 215, Baroness
Hale, paragraphs 36(3), (4). Parliaments were presumed not to legislate idly, or in vain.
Individual provisions in Acts of Parliament were intended to have specific effect.
Parliament must have considered that its listing of "the Union of the Kingdoms of Scotland
and England" as a reserved matter in Schedule 5 SA was not, of itself, sufficient to prevent
the Scottish Parliament from legislating to modify provisions of the Union with Scotland
Act 1706 and the Union with England Act 1707. Otherwise, the specific reservation under
Schedule 4 of the SA 1998 of "Articles 4 and 6 of the Union with Scotland Act 1706 and of the
Union with England Act 1707 so far as they relate to freedom of trade" would be otiose. In
26
ordinary language, Articles 4 and 6 of the 1706 Act would clearly be said to "relate to" the
"Union of the Kingdoms of Scotland and England".
[73]
For distinct meanings and effect to be given to both paragraph 1(2)(a) in Schedule 4
and to paragraph 1(b) in Part I of Schedule 5 SA, a narrower approach than ordinary
language might otherwise indicate had to be given to the phrase "legislation which `relates'
to the Union of the Kingdoms of Scotland and England." The 1998 Act used the phrase
"relates to reserved matters" in defining the limits on the legislative competence of the
Scottish Parliament as a technical term of art: (section 29(3) SA).
[74]
The interpretation of constitutional statutes required a purposive approach to the
proper interpretation of, and interplay between, the relevant statutory provisions. No
explanation was necessary for resorting to purposive interpretation: Attorney General's
[75]
It was therefore first of all necessary to identify the actual purpose of any Scottish
legislation making provision for an independence referendum: Imperial Tobacco Ltd v
provisions of the 1998 Act that the Scottish Parliament might consult the people of Scotland
about the possibility of effecting - in a manner which is consistent with the UK constitution -
future change to the UK constitution. The exercise of such a power in such a manner would
be a consultative exercise of a principle of democratic accountability consistent with
principles of democracy and the rule of law and international norms. The exercise of such a
power would be intra vires.
[76]
The court should grant the first declarator. If it did so, being satisfied that it was
appropriate to determine the substantive matter raised, it would have to make a
determination as to further procedure with a view to adjudicating upon the second
27
conclusion. It should consider making an order for recovery of the draft bill referred to in
the Scottish Government publication 18/1 of process.
First defender's submissions
[77]
The legal propositions advanced by the pursuer were wrong.
[78]
Section 29(2)(b) provided that a provision of an Act was outside the legislative
competence of the Scottish Parliament so far as it related to reserved matters. Those were
defined in Schedule 5: section 30(1). They included, in paragraph 1 of Part I, "The following
aspects of the constitution ... (b) the Union of the Kingdoms of Scotland and England, (c) the
Parliament of the United Kingdom". Whether a provision related to a reserved matter was
"to be determined ... by reference to the purpose of the provision, having regard (among
other things) to its effect in all the circumstances": section 29(3).
[79]
The question of legislative competence was to be answered by looking at the rules
laid down in the 1998 Act, rather than case law on how similar issues were determined in
other jurisdictions: Imperial Tobacco v Lord Advocate 2013 SC (UKSC) 153, paragraph 13. The
1998 Act had to be interpreted in the same way as any other statute and according to the
ordinary meaning of the words used in their statutory context: UK Withdrawal From the
European Union (Legal Continuity) (Scotland) Bill 2019 SC (UKSC) 13, paragraphs 12, 60;
Imperial Tobacco at paragraphs 14-15.
[80]
It was necessary first to understand the scope of the subject matter that was reserved
and then determine by reference to the factors in section 29(3) whether the provision under
challenge related to it: UK Withdrawal etc Bill, paragraph 27. In order to relate to it, a
provision of a Scottish Act must have more than a loose or consequential connection with a
reserved matter. The purpose in section 29(3) might extend beyond its legal effect, but
28
purpose was not the same as political motivation. The circumstances to which regard was
had under section 29(3) included the situation before enactment, in the assessment of which
the usual legislative background materials might be taken into account: Martin,
paragraph 25.
[81]
The court could not apply those principles to decide in this action whether the
proposition that the pursuer asked it to declare was correct, because no legislation was
available for scrutiny. Even if it could, the proposition was wrong.
[82]
The reservation in paragraph 1(c) of Part I of Schedule 5 encompassed the
sovereignty of the UK Parliament (ie, its constitutional function as the ultimate source of
legal authority, powers and privileges): Withdrawal etc Bill, paragraphs 61 - 63. Secession
involved (at least) reduction in the UK Parliament's powers: Moohan v Lord Advocate 2015
SC (UKSC) 1 at paragraphs 17, 71, 91 and 102. Therefore Scottish independence would affect
the reserved matters in both paragraph 1(b) and (c). A referendum on Scottish
independence related to those matters within the meaning of that phrase in section 29(2)(b).
[83]
First, in the absence of a bill and its background materials, it would be reasonable for
the court to infer that the contemplated legislation to establish a referendum would be
intended by the MSPs who would promote and vote for it as a means to secession. Support
for that inference came from the First Minister's statement on 31 January 2020 that the
pursuer cited: "To achieve independence, a referendum...must be legal and legitimate".
Further support came from what the First Minister said in introducing the Programme for
Government on 1 September 2020 (the pursuer relies on this in support of his second
conclusion):
"That is why we will publish, before the end of this session of Parliament, a draft bill
setting out the proposed terms and timing of an independence referendum as well as
the proposed question that people will be asked in that referendum. Then, at next
29
year's election, we will make the case for Scotland to become an independent
country, and we will seek a clear endorsement of Scotland's right to choose our own
future."
[84]
Second, a referendum would have more than a loose connection with the reserved
matters. Again, since there were no bill provisions to construe, this was necessarily a matter
of inference. It would be reasonable for the court to infer that the contemplated legislation
would have the legal effect of authorising and requiring counting officers and registration
officers in local authority areas to administer a vote and allocating resources to them to do
so (as provided for in the Referendums (Scotland) Act 2020) on whether the Union of the
Kingdoms of Scotland and England should end and whether the Parliament of the United
Kingdom should cease to be sovereign in Scotland. By virtue, however, of section 29(3), to
identify the purpose of legislation, the court might look beyond its legal effect. The purpose
of legislation authorising a referendum on independence would be to seek to build
momentum towards achieving independence, the termination of the Union of the Kingdoms
of Scotland and England and the cessation of the sovereignty of the Parliament of the United
Kingdom in Scotland.
[85]
Third, the correct interpretation of the provisions of the 1998 Act about reserved
matters was that their central aim was those matters in which the United Kingdom as a
whole has an interest should continue to be the responsibility of the United Kingdom
Parliament: Christian Institute v Lord Advocate 2017 SC (UKSC) 29, paragraph 65. The people
of the United Kingdom as a whole had an interest in whether the United Kingdom may be
divided.
[86]
Fourth, the White Paper, Scotland's Parliament, Cm 3658 was an aid to the
interpretation of the reservations in Schedule 5. It cast light on their legislative aim:
eg Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paragraph 56. Paragraph 5 stated,
30
"The Government believe that reserving power in these areas will safeguard the integrity of
the UK". That supported the proposition that measures which "questioned the integrity of
the United Kingdom" were reserved.
[87]
Fifth, statements during the passage of the Scotland Bill showed that the UK
Parliament did not intend the 1998 Act to give the Scottish Parliament the power to legislate
for a referendum on Scottish independence. Referring to the statements by the Secretary of
State and the Shadow Lord Advocate quoted at paragraphs 67 and 68 of this opinion, the
first defender submitted that the former might be used as an aid to interpretation, but the
latter might not. It did not meet condition (b) in Pepper v Hart [1993] AC 593 at 640. It was
neither made by a promoter of the bill nor necessary to understand a statement made by
such a promoter. The statement by the Secretary of State supported the first defender's
interpretation of the 1998 Act. The statement by Lord Sewel that caused the withdrawal of
an amendment to add the words "including the holding of referendums on questions
relating to the maintenance of that union" to what became paragraph 1(b) of Part I of
Schedule 5, however, satisfied the condition already mentioned and, again, supported the
first defender's interpretation of the SA. Lord Sewel said (Hansard, HL, Vol 592,
Cols 854 - 855 at 7/8, MS p58):
"I wish the Committee to be in no doubt that as the Bill stands the Scottish
parliament will not be able to legislate to hold a referendum on independence as the
union of the kingdoms is already a reserved matter under Schedule 5. Explicit
reference along the lines proposed by the noble Lord, Lord Rowallan, is just not
needed. In determining what relates to a reserved matter, the government
amendments tabled to Clause 28 are of help here, because they indicate that we
must look at the purpose of what is being done. If the parliament passed an Act to
hold a referendum about whether the Union should continue, it would thus clearly
be legislating in relation to the reserved matter of the Union. Any such Act would
be about the continuation of the Union and it would therefore be beyond the
parliament's competence and would not be law. Perhaps I may go through the
three steps that lead to that conclusion. First, the parliament cannot legislate if the
provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union
31
of the Kingdoms of Scotland and England is a reserved matter by virtue of
paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on
independence would be legislation about whether the Union should be maintained
and would therefore relate to the reserved matter of the Union, and so be beyond
the competence of the parliament. That is brought in by the purpose test which we
discussed earlier."
[88]
Responding to the pursuer's arguments, the first defender submitted that the
circumstance that the 1998 Act was a constitutional statute was not, of itself a guide to
interpretation: Imperial Tobacco, paragraph 15. Part I of Schedule 5 did not render 1(2)(a) of
Schedule 4 otiose. The pursuer's argument to the effect that it did conflicted with his
contention that the 1998 Act should be interpreted "not in the way of a black-letter lawyer",
but purposively. Further, the provision was not otiose for the following reasons. Section 29
required that legislation of the Scottish Parliament satisfy both the requirements of
Schedule 4 and those of Schedule 5: section 29(2)(b) and (c). The two schedules served
different objectives. Schedule 5 reserved the subject matter of specified areas of law, while
Schedule 4 protected certain provisions from modification: Withdrawal etc Bill,
paragraphs 51, 99; Martin, paragraphs 21, 76-77. Even if the purpose of an Act did not relate
to a reserved matter and it was therefore within competence in terms of section 29(2)(b) SA,
it was still necessary that its provisions should not modify the law relating to reserved
matters set out in Schedule 4. An Act might have a perfectly lawful object but seek to
achieve it by an invalid method: Imperial Tobacco at paragraph 13. The correct approach to
construction was that advocated by the first defender.
[89]
As to the contention that Scottish independence would not inevitably follow a
referendum, that depended on unspoken assumptions about the terms of the legislation
providing for the referendum and the attitudes of the Scottish and UK Governments and
32
Parliaments that the court could not make. In any event, the purpose of provision in
section 29(3) was not the same thing as its effect.
Decision
The nature of the court's jurisdiction
[90]
I deal first with the question as to the nature of the jurisdiction I am being asked to
exercise. This case is one, like Wightman, in which the court is asked to answer a question so
as to provide a determination as to the existing state of the law on a particular matter. In
Wightman the question was one of European Union law, and the court referred the matter to
the Court of Justice. I do not accept the second defender's analysis that in seeking the
declarators that he does, the pursuer in substance invokes the supervisory jurisdiction. That
analysis does not engage directly with the case that the pursuer makes, namely that he, like
the Member of Parliament in Wightman, requires advice as to the state of the law to enable
him to vote on an informed basis. The pursuer is not asking the court to make an order to
remedy or prevent any unlawful exercise of power on the part of the Scottish Parliament.
[91]
The second defender has two pleas in law in relation to this matter. In his third plea
in law he seeks dismissal on the basis that the action is incompetent. I quote in full his
seventh plea in law at paragraph 11. Applications to the supervisory jurisdiction must be
brought by way of petition for judicial review: RCS 58.1(1), (2), and these proceedings have
been raised by means of a summons.
[92]
In Wightman the respondent had contended that the proceedings lay outwith the
scope of the supervisory jurisdiction. In making the reference the court did not require to
decide as to the nature of that jurisdiction. The views expressed in Wightman on that point
are all obiter. The Lord President (Carloway) observed at paragraph 21 that the traditional
33
method of securing an answer to a legal question posed is by action of declarator. At
paragraph 26, he said:
"[26] This petition does not now seek to review the actings of any body. The focus
has shifted from one which sought to challenge what was alleged to be Government
policy to one seeking a declarator irrespective of the Government's position. The
remedy sought, of reduction of a letter from the respondent, has gone. The
contentions about the Government misdirecting itself or failing in relation to a duty of
candour do not find their way into the remedies sought. There is no matter left to be
reviewed. It may therefore be doubted whether the case falls within the supervisory
jurisdiction of the court and thus within the scope of judicial review (RCS 58.3 (Act of
Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))) as defined in
West v Secretary of State for Scotland (Lord President (Hope), delivering the opinion of
the court, pp 412, 413). However, the court's jurisdiction in public law matters is not
confined to the review of decisions or failures to act. It may be that the case ought to
have proceeded simply by way of an action of declarator rather than a petition for
judicial review. However, no procedural point in that regard is taken."
[93]
Lord Menzies did not express a separate view as to the nature of the jurisdiction. He
said he was in complete agreement with the Lord President as to his conclusions and
reasoning. Lord Drummond Young rejected the respondents' contention, saying the
following at paragraphs 67-69
"[67] The fundamental purpose of the supervisory jurisdiction is in my opinion to
ensure that all government, whether at a national or local level, and all actions by
public authorities are carried out in accordance with the law. That purpose is
fundamental to the rule of law; public authorities of every sort, from national
government downwards, must observe the law. The scope of the supervisory
jurisdiction must in my opinion be determined by that fundamental purpose.
Consequently I would have no hesitation in rejecting any arguments based on
procedural niceties, or the detailed scope of previous descriptions of the supervisory
jurisdiction, if they appear to stand in the way of the proper enforcement of the rule
of law.
[68]
The present case is a somewhat unusual example of the supervisory
jurisdiction, in that the court is ultimately asked to request the CJEU to answer a
question on the scope of Art 50 of the TEU. That is not a form of procedure found in
traditional administrative law within the United Kingdom. Moreover, the function
of the question is to enable certain persons, notably MPs, to be properly informed
about the present state of the law in relation to Art 50. Nevertheless, while the form
of the proceedings and their effect is different from the traditional application of the
supervisory jurisdiction, the underlying purpose is to ensure that those charged with
voting on issues of vital importance to the United Kingdom are properly advised on
34
the existing state of the law. That in my opinion falls squarely within the
fundamental purpose of the supervisory jurisdiction.
[69]
There is, moreover, a clear analogy with the use of a declarator to advise a
public body or authority as to what the law is or how it applies in a particular
situation. Declarator has frequently been used as a remedy in the field of public law;
its utility is obvious. In relation to EU law, however, it is not the Court of Session that
can grant an authoritative declarator as to the state of the law but the CJEU. In order
for that to happen, the Court of Session must pose questions to the CJEU. The
answers to those questions, however, are functionally equivalent to a declarator
issued by the Court of Session. Consequently I am unable to discover any
procedural reason for not using judicial review procedure in such a way as to make a
reference to the CJEU in order to obtain its opinion. For these reasons I would reject
the argument that this petition for judicial review is procedurally or jurisdictionally
incompetent."
[94]
The jurisdiction exercised in Wightman is properly characterised as one which is
necessary to preserve the rule of law in the sphere of public law. There is no conflict between
the views expressed by the Lord President and those expressed by Lord Drummond Young
in that respect. That is apparent both from the passage quoted above, and from the opinion
of the Lord President, at paragraph 24.
[95]
The law as to the scope of the supervisory jurisdiction is that stated by the
Lord President (Hope) in West v Secretary of State for Scotland 1992 SC 385. The sole purpose
for which the supervisory jurisdiction may be exercised is to ensure that a person or body to
whom a jurisdiction, power, or authority has been entrusted does not exceed or abuse that
jurisdiction, power or authority, or fail to do what the jurisdiction, power or authority
require. An excess or abuse of jurisdiction may involve stepping outside it: West at 413.
The supervisory jurisdiction can be invoked if the Scottish Parliament acts outside legislative
competence, as in Christian Institute v Lord Advocate. There is here no allegation that the
Scottish Parliament has exceeded its powers. No order is sought from the court to reduce
any act, or to order performance in relation to an omission. The pursuer seeks advice from
the court as to what the powers of the Scottish Parliament are. While the questions focused
35
in the declarators raise issues of vires, these proceedings are not applications to the
supervisory jurisdiction.
[96]
I therefore repel the third and seventh pleas in law for the second defender.
[97]
I observe that the point is, in the context of the point this litigation has reached, a
sterile one. A debate has been conducted on other pleas which are capable of disposing of
the action. I should have been reluctant to dispose of proceedings raising public law issues
simply on the basis that they had been raised using the wrong procedure, for the following
reasons.
[98]
I accept that it is necessary to identify the nature of the jurisdiction that is being
exercised. The Scottish Parliament legislated in the Courts Reform (Scotland) Act 2014 so as
to impose particular requirements in relation to the exercise of the supervisory jurisdiction,
by way of time limits and a requirement for permission, in what are now sections 27A
to 27D of the Court of Session Act 1988. The Scottish Parliament's will, which is that
applications to the supervisory jurisdiction be subject to those requirements, must not be
frustrated by the use of alternative means of procedure.
[99]
There is no conflict between the necessity to identify whether the jurisdiction
invoked is the supervisory jurisdiction or not, and to follow the procedural requirements
associated with the jurisdiction in question, and the imperative to avoid situations in which
procedural niceties could stand in the way of the enforcement by the courts of the rule of
law. The appropriate disposal will not necessarily be dismissal if an application to the
supervisory jurisdiction is made by action rather than petition for judicial review, but is
likely to be an order for transfer to judicial review under RCS 58.15, which provides:
"(1) The Lord Ordinary may order that a cause raised as an action should proceed as
a petition for judicial review, if satisfied that--
(a)
it should proceed in that way; and
36
(b)
the requirements of section 27B(2) or (3) (as the case may be) of the Act
of 1988 are met.
(2) If the Lord Ordinary orders that an action should proceed as a petition for
judicial review, it must proceed under rule 58.11 (as if permission had been granted)
and the Lord Ordinary must also order--
(a)
the petitioner to prepare a minute stating--
(i)
the act, decision or omission to be reviewed;
(ii)
the remedies which the petitioner seeks; and
(iii)
the legal grounds of challenge;
and to intimate the minute and lodge it in process within 7 days;
(b)
the respondent to lodge and intimate answers to that minute within 14 days
thereafter.
(3)
That minute and answers, together with the earlier pleadings, thereafter
comprise the pleadings in the proceedings, subject to such further adjustment or
amendment as the Lord Ordinary may authorise."
[100]
Senior counsel for the second defender pointed out that the Lord Ordinary's power is
discretionary. That is true. It is clear, however, that the rule (as it stands after amendment
following the introduction of permission requirements) is apt to permit the transfer of an
action which is correctly understood to be an application to the supervisory jurisdiction to
judicial review procedure, and to ensure that the statutory requirements in relation to
permission are applied as they would have been had the proceedings taken the correct form
in the first place. A defender wishing to raise a matter of this sort in public law proceedings
ought to seek to have the matter determined by the court at an early stage. I understand that
the second defender at one stage in this case indicated an intention to enrol a motion for a
hearing to that end, but did not proceed to do so.
[101]
A plea that a public law case ought to be dismissed on the ground of incompetency,
where there is a procedure available to allow the case to be put on the correct procedural
track, falls into the category of preliminary objection deprecated by Lord Drummond Young
in Taylor at paragraph 15. A hearing on the matter under RCS 58.15 would permit argument
as to the nature of the jurisdiction being exercised, a finding on that, and, in the event that
37
the application were one to the supervisory jurisdiction, a determination as to whether the
tests for permission were satisfied. It obviates any need for a plea like the second defender's
seventh plea in law. The rule does not specify what would happen to an ordinary action if it
were not transferred, where the Lord Ordinary had found that it was an application to the
supervisory jurisdiction and did not meet the tests for permission, but it would presumably
then fall to be dismissed at that point. There may be less difficulty where a party has
satisfied the permission requirements in an application for judicial review, but on further
analysis it appears that he is not actually invoking the supervisory jurisdiction of the court.
In any event, RCS 58.16 provides for transfer to ordinary procedure where a Lord Ordinary
is satisfied that the cause should proceed in that way.
The 1998 Act scheme for determining legislative competence
[102]
The relevant provisions so far as material for the purposes of this action are the
following. There is now also provision for a reference by a law officer to the Supreme Court
as to whether a bill or any provision of a bill relates to a protected subject-matter: section 32A.
"28.-- Acts of the Scottish Parliament
(1)
Subject to section 29, the Parliament may make laws, to be known as Acts of
the Scottish Parliament.
(2)
Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill
shall become an Act of the Scottish Parliament when it has been passed by the
Parliament and has received Royal Assent.
(3)
A Bill receives Royal Assent at the beginning of the day on which Letters
Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her
Assent are recorded in the Register of the Great Seal.
...
29.-- Legislative competence
(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--
38
(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 [in breach of the
restriction in section 30A(1)]1,
(e)
it would remove the Lord Advocate from his position as head of the systems
of criminal prosecution and investigation of deaths in Scotland.
(3)
For the purposes of this section, the question whether a provision of an Act of
the Scottish Parliament relates to a reserved matter is to be determined, subject to
subsection (4), by reference to the purpose of the provision, having regard (among
other things) to its effect in all the circumstances.
...
(5)
Subsection (1) is subject to section 30(6).
30.-- Legislative competence: supplementary
(1)
Schedule 5 (which defines reserved matters) shall have effect.
(2)
Her Majesty may by Order in Council make any modifications of Schedule 4
or 5 which She considers necessary or expedient.
(3)
Her Majesty may by Order in Council specify functions which are to be
treated, for such purposes of this Act as may be specified, as being, or as not being,
functions which are exercisable in or as regards Scotland.
(4)
An Order in Council under this section may also make such modifications
of--
(a)
any enactment or prerogative instrument (including any enactment
comprised in or made under this Act), or
(b)
any other instrument or document,
as Her Majesty considers necessary or expedient in connection with other provision
made by the Order.
31.-- Scrutiny of Bills [for legislative competence and protected subject-matter]1
(1)
[A person]2 in charge of a Bill shall, on or before introduction of the Bill in the
Parliament, state that in his view the provisions of the Bill would be within the
legislative competence of the Parliament.
(2)
The Presiding Officer shall, on or before the introduction of a Bill in the
Parliament, decide whether or not in his view the provisions of the Bill would be
within the legislative competence of the Parliament and state his decision.
32.-- Submission of Bills for Royal Assent
(1)
It is for the Presiding Officer to submit Bills for Royal Assent.
(2)
The Presiding Officer shall not submit a Bill for Royal Assent at any time
when--
(a)
the Advocate General, the Lord Advocate or the Attorney General is entitled
to make a reference in relation to the Bill under section 32A or 33,
(b)
any such reference has been made but has not been decided or otherwise
disposed of by the Supreme Court, or
(c)
an order may be made in relation to the Bill under section 35.
39
...
(3)
The Presiding Officer shall not submit a Bill in its unamended form for Royal
Assent if--
(a)
the Supreme Court has decided that the Bill or any provision of it would not
be within the legislative competence of the Parliament.
33.-- Scrutiny of Bills by the Supreme Court (legislative competence)
(1)
The Advocate General, the Lord Advocate or the Attorney General may refer
the question of whether a Bill or any provision of a Bill would be within the
legislative competence of the Parliament to the Supreme Court for decision.
(2)
Subject to subsection (3), he may make a reference in relation to a Bill at any
time during--
(a)
the period of four weeks beginning with the passing of the Bill, and
(b)
any period of four weeks beginning with any approval of the Bill in
accordance with standing orders made by virtue of section 36(5).
(3)
He shall not make a reference in relation to a Bill if he has notified the
Presiding Officer that he does not intend to make a reference in relation to the Bill,
unless the Bill has been approved as mentioned in subsection (2)(b) since the
notification.
40.-- Proceedings by or against the Parliament etc.
(1)
Proceedings by or against the Parliament shall be instituted by or (as the case
may be) against the Parliamentary corporation on behalf of the Parliament.
(2)
Proceedings by or against--
(a)
the Presiding Officer or a deputy, or
(b)
any member of the staff of the Parliament,
shall be instituted by or (as the case may be) against the corporation on his behalf.
(3)
In any proceedings against the Parliament, the court shall not make an order
for suspension, interdict, reduction or specific performance (or other like order) but
may instead make a declarator.
(4)
In any proceedings against--
(a)
any member of the Parliament,
(b)
the Presiding Officer or a deputy,
(c)
any member of the staff of the Parliament, or
(d)
the Parliamentary corporation,
the court shall not make an order for suspension, interdict, reduction or specific
performance (or other like order) if the effect of doing so would be to give any relief
against the Parliament which could not have been given in proceedings against the
Parliament.
(5)
References in this section to an order include an interim order."
[103]
Consideration by a court of proposed legislation will normally be hypothetical and
premature at any point before it is in its final form and has been passed by Parliament. A
bill may fall. Until it is passed, it will be capable of amendment. Provisions which were
40
outside legislative competence may have been deleted or amended so as to be within
legislative competence. It is also possible that a bill which, when introduced, was within
legislative competence, has had provisions added by amendment which are not within
legislative competence. A bill, unless it is passed and receives Royal Assent, will not be law.
The provisions of the 1998 Act are consistent with that general position. They also recognise
that the separation of powers requires that the court not pronounce orders which prevent
Parliament from fulfilling its legislative function in that way. The court could not grant an
interdict against the Parliament considering a bill, even if it would not be within the
legislative competence of the Parliament: section 40(3) and (4); Whaley, Lord President
(Rodger) at 350G. The power of the court to grant a declarator in proceedings against the
Parliament, is, however, not excluded. If Parliament does come to pass legislation that it
does not have power to pass, there are remedies which can be pursued by the law officers,
or by individuals.
[104]
The defenders' submissions, however, go further. The defenders contend that the
provisions of the Scotland Act exclude any application to the court regarding proposed
legislation before Royal Assent other than one made to the Supreme Court by a law officer.
[105]
I reject that contention. It is not consistent with principle or authority. The Scottish
Parliament is a creation of statute and remains subject to the jurisdiction of the court where
that is not the subject of specific exclusion. Section 40, on which the second defender placed
some reliance, is notable in that it excludes the jurisdiction of the court in certain very
specific respects, although not in relation to its power to make a declarator. It follows that
the jurisdiction of the court is not otherwise excluded. Consideration of section 40(3) and (4)
prompted a decision to that effect in Whaley v Lord Watson.
41
[106]
The petitioners in Whaley sought to interdict a MSP from introducing a particular bill
in and from encouraging another member of the Scottish Parliament to do likewise. They
alleged that if he were to do so he would be acting in breach of a provision of subordinate
legislation prohibiting a MSP from doing anything in that capacity which related to the
affairs or interests of, or which sought to confer a benefit on, a person from whom he had
received remuneration. The respondent MSP argued that interdict was incompetent by
virtue of the provisions of section 40(3) and (4) of the 1998 Act. The Lord President (Rodger)
said the following, at page 349H-350D:
"Since subsections (3) and (4) of Section 40 have been specifically enacted to exclude
certain powers of the court in relation to proceedings against the Parliament, the
inference must be that in other respects the law applies in the usual way to both the
Parliament and to members of the Parliament. Under reference to the opinion of
Lord Woolf M.R. in R. v. Parliamentary Commissioner for Standards ex parte
submitted, however, that this court should exercise `a self-denying ordinance in
relation to interfering with the proceedings' of the Scottish Parliament. Lord Woolf
used that expression to describe the attitude which the courts have long adopted
towards the Parliament of the United Kingdom because the relationship between
the courts and Parliament is, in the words of Sedley L.J., `a mutuality of respect
between two constitutional sovereignties'. The basis for that particular stance,
including Article 9 of the Bill of Rights 1689, is lacking in the case of the Scottish
Parliament. While all United Kingdom courts which may have occasion to deal
with proceedings involving the Scottish Parliament can, of course, be expected to
accord all due respect to the Parliament as to any other litigant, they must equally
be aware that they are not dealing with a parliament which is sovereign: on the
contrary, it is subject to the laws and hence to the courts. For that reason, I see no
basis upon which this court can properly adopt a `self-denying ordinance' which
would consist in exercising some kind of discretion to refuse to enforce the law
against the Parliament or its members. To do so would be to fail to uphold the
rights of other parties under the law. The correct attitude in such cases must be to
apply the law in an even-handed way and, subject to the residual discretion
at pp. 91 - 93, to grant to parties the remedy which they seek and to which they are
entitled. In particular, where a competent interim remedy is sought against a
member, the correct approach will be to apply the law in the usual way and to have
regard to all the relevant factors in deciding where the balance of convenience lies."
42
[107]
Lord Prosser's opinion was to similar effect, at 357E-358E:
"As I understood the submissions, the argument seemed to rest upon some broad
view that since the Scottish Parliament was a parliament, rather than for example a
local authority, the jurisdiction of the courts must be seen as excluded, as an
unacceptable intrusion upon the legislative function which belonged to Parliament
alone. A variant of this argument appeared to be that if the court's jurisdiction was
not actually excluded as a matter of law, the court should nonetheless be slow or
hesitant or reluctant or unwilling to use the jurisdiction which it had, in order to
avoid an undesirable intrusion on Parliament's freedom in relation to legislation.
Both forms of argument appear to me to be entirely without foundation. If and in so
far as a parliament may have powers which are not limited by any kind of legal
definition, there is no doubt scope for concepts of `sovereignty', with the courts
unable to enforce boundaries which do not exist. But if and in so far as a parliament
and its powers have been defined, and thus limited, by law, it is in my opinion
self-evident that the courts have jurisdiction in relation to these legal definitions and
limits, just as they would have for any other body created by law. If anything, the
need for such a jurisdiction is in my opinion all the greater where a body has very
wide powers, as the Scottish Parliament has: the greater the powers, the greater the
need to ensure that they are not exceeded. But the jurisdiction of the courts and the
legal definition of the body seem to me to be merely two sides of the same coin.
Faced with the suggestion that the courts might abstain from exercising a jurisdiction
which they have, allowing the Parliament perhaps to exercise power beyond its legal
limits, from a fear that enforcement of those limits might be seen as stopping
Parliament from doing what it wanted to do, I am baffled: a defined parliament is
there to do not whatever it wants, but only what the law has empowered it to do. In
the odd, and perhaps unsatisfactory, context of `sovereign' or undefined powers, the
courts may be faced with problems; but these are very precisely problems of a kind
which do not arise, and can afford no guidance, where the issue is one of law, and
jurisdiction is its inevitable counterpart. The nature and functions of the Parliament,
and of any particular provisions, will of course be matters which must be taken into
account, whenever the courts in exercising their jurisdiction require to interpret or
apply the provisions which the law has made in relation to the Parliament. But that
is a quite different matter."
[108]
The Supreme Court, in AXA, which involved an application to the supervisory
jurisdiction of the court, held that Acts of the Scottish Parliament are amenable to the
supervisory jurisdiction at common law, in the absence of any provision in the Scotland Act
excluding that possibility. The supervisory jurisdiction is not restricted to review on the
grounds that the Scottish Parliament has transgressed against the limits on its powers
expressed in section 29 of the Scotland Act. That jurisdiction will not, however, be exercised
43
on ordinary common law grounds such as irrationality, AXA, Lord Hope DPSC,
paragraphs 45-52. Lord Reed, paragraphs 135-154. Lord Reed referred to the reasoning of
the Lord President in Whaley, at paragraph 138, saying:
"As the Lord President's remarks make clear, the Scottish Parliament is not a
sovereign parliament in the sense that Westminster can be described as sovereign:
its powers were conferred by an Act of Parliament, and those powers, being defined,
are limited. It is the function of the courts to interpret and apply those limits, and the
Scottish Parliament is therefore subject to the jurisdiction of the courts."
[109]
By parity of reasoning, just as the court's jurisdiction at common law is not displaced
or limited to review on grounds of legislative competence by reference to section 29 (which
sets limits on legislative competence), it is not, in principle, limited or excluded by virtue of
the provisions for reference by a law officer of a bill which has been passed, prior to Royal
Assent, to the Supreme Court (which provide a structure for review by the courts of
legislative competence).
[110]
In relation to a question from me regarding that submission, counsel for the first
defender responded that the exclusion of the jurisdiction of the court other than when it is
invoked by means of the procedures provided for in the 1998 Act did not represent the
limitation or removal of a fundamental right requiring express statutory words. I do not
accept that analysis. The right to obtain a ruling as to the current state of the law is an aspect
of the right access to the court: Wightman, paragraph 21. Access to the courts is a
fundamental constitutional right, which can only be curtailed by clear and express statutory
enactment: R(Unison) v Lord Chancellor.
[111]
Consideration of section 33 supports the conclusion that the court's common law
jurisdiction is not limited or excluded by the statutory scheme. The expression "legislative
competence" features in the index of defined expressions: section 127. It is defined by
reference to section 29. In consequence it is only in relation to the legislative competence, so
44
defined, of a bill that section 33 confers power to make a reference to the Supreme Court law
officers. On the defenders' analysis, that would mean that there was no possibility of any
competent application to the court before Royal Assent even in the case of unlawfulness of
the sort mentioned by Lord Hope and Lord Reed in AXA, at paragraphs 49-51 and 151-154
respectively.
[112]
Section 31 clearly requires statements about legislative competency to be made in
good faith. Those statements are presumably also made on the basis of legal advice from
those qualified to provide it. Senior counsel for the pursuer was correct to point out that
where the bill is a government bill the principles of collective cabinet responsibility apply to
the statement made by a minister in compliance with section 31(1). This is reflected in the
practice in recent times of using the heading "Scottish Government Statement on Legislative
Compliance" above the statement in question when it is published in the Explanatory Notes
accompanying a bill, and the formula formerly used, "Executive Statement on Legislative
Competence". The terms of section 31 either taken alone or in combination with the other
provisions regarding legislative competence are not apt to indicate an intention to exclude
the jurisdiction of the court to make declarators about the state of the law. Statements by
politicians do not determine what the law is. That is the preserve of the court: Wightman,
paragraphs 28, 50.
The action is hypothetical, premature or academic; standing
[113]
Parties drew to my attention a number of decided cases in which the courts had
pronounced "bare" declarators advising as to the law, or had declined to provide advice in
that, or an analogous, way. I have no difficulty in accepting that it is competent in principle
for the court to pronounce such a declarator.
45
[114]
Some of the cases to which the pursuer referred were cases in which there had been a
dispute between parties which was no longer "live", such as Napier and Davidson. What the
court was doing in Napier and Davidson was to clarify the law for the future in the course of a
reclaiming motion or appeal in which the original dispute which had prompted argument
on the point of law was no longer live between the parties to it. The court took that course
because the point of law was an important one which would require to be dealt with in
another case if it were not dealt with in the case before the court. In each case there had
been a live dispute between the parties of a conventional character, and there was still a
practical purpose in obtaining a ruling.
[115]
The course followed by the Supreme Court in Reference by the Attorney General of
Northern Ireland of devolution issues to the Supreme Court pursuant to paragraph 34 of Schedule 10
to the Northern Ireland Act 1998 (No 2), is the mirror image of that approach. In that case, the
court declined to allow the reference to proceed because there was other litigation pending
which potentially raised most, if not all, of the issues in the reference. They would provide
the chance for the issues to be ventilated against a "clear factual backdrop", as was generally
desirable. The court also noted that in those proceedings the courts of Northern Ireland
would be able to deal with the issues by reference to the practical reality of their impact on
society there. The court did not suggest that the matters could not be raised on a reference,
but clearly regarded it as more appropriate that they should be dealt with in a litigation,
where there was already one raised and apt for that purpose. None of these cases is directly
analogous with the present one.
[116]
Similarly, in relation to standing, I was referred to various cases in which individual
citizens had been regarded as having standing in public law matters. All of them, save
Wightman, were cases in which unlawful acts were alleged. The law on standing is as stated
46
in AXA and in Walton. Sometimes an individual will have to demonstrate some particular
interest in an issue in order to show that he is not a busybody, but in others he will have
sufficient interest simply as a citizen, affected as all other citizens are, by a particular
violation of the law. The rule of law would not be maintained if, because everyone was
equally affected by an unlawful act, no-one was able to bring proceedings to challenge it:
Walton, Lord Reed, paragraph 94. The same approach must be taken in relation to
applications for declarators as to the existing state of the law. Depending on the nature of
the issue, an individual may well have standing as an individual citizen, but he will require
to demonstrate that the application needs to be determined in order to preserve the rule of
law. The protection of the rule of law does not require that every allegation of unlawful
conduct by a public authority must be examined by a court: Lord Reed, AXA,
paragraph 170. A fortiori, where no unlawful conduct is alleged, it is not in every public law
case that the court will exercise its jurisdiction to answer a question about a disputed point
of law.
[117]
I derived no assistance from the case of Ewing, referred to by the first defender in
relation to the standing of persons designing themselves as campaigners. The court in that
case did not have to determine the question of sufficient interest. Further, the case was one
in which one of the claimants was the subject of a civil proceedings order (ie was a vexatious
litigant) and there appeared to be some doubt about the genuineness of his claim to be a
"heritage and environmentalist issues campaigner". They do nothing to cast light on the
circumstances in which being a campaigner in a particular field may provide a sufficient
interest to seek a remedy from a court, far less the remedy sought in this case. I note that the
pursuer's averments about his campaigning activities are not known and not admitted by
47
the first defenders. Presumably if they had any positive basis on which to impugn the truth
of his averments they would have met them with denial.
Wightman
[118]
The pursuer contends that I am bound, by virtue of the decision of the First Division
in Wightman, to provide him with a declarator or, in due course, declarators as to what the
law is, in particular respects. He submits that the analysis in that case applies to the
circumstances of this case, and that it provides a complete answer to the defenders'
preliminary arguments. By way of preface, therefore, it is convenient to consider in more
detail the matters that were at issue in that case, and how the court disposed of them.
[119]
In Wightman the petitioners, by the time of the reclaiming motion in August 2018
were two MSPs, three MEPs and two MPs. A referendum had produced a majority in
favour of leaving the European Union. The European Union (Notification of Withdrawal)
Act 2017 conferred power on the Prime Minister to withdraw from the European Union
under Article 50. The Prime Minister gave notice to that effect. The petitioners sought a
declarator specifying whether, when and how the notification could unilaterally be revoked.
They asked the court to make a reference to the Court of Justice of the European Union
("CJEU") for a ruling on that matter. The UK Government had stated that they did not
intend to revoke the notification. The Lord Ordinary dismissed the petition on the grounds
that the issue was hypothetical because the UK Government had stated that they did not
intend to revoke the notification; that the matter involved an encroachment on
parliamentary sovereignty; and that the conditions for a reference to the CJEU had not been
met.
48
[120]
By the time of the reclaiming motion, Parliament had passed the European Union
(Withdrawal) Act 2018, which set out the means by which parliamentary approval was to be
sought once negotiations between the UK Government and the EU Council had been
concluded. The Lord President described the resulting state of affairs in the following terms,
at paragraphs 5 to 7:
"[5]
... In particular, the withdrawal agreement can only be ratified if it, and the
framework for the future relationship of the United Kingdom and European Union,
have been approved by a resolution of the House of Commons and been debated in
the House of Lords. If no approval is forthcoming, the Government must state how
they propose to proceed with negotiations. If the Prime Minister states, prior to
21 January 2019, that no agreement in principle can be reached, the Government
must, once again, state how they propose to proceed. They must bring that proposal
before both Houses.
[6]
Meantime, on 15 May 2018 the Scottish Parliament refused to consent to what
was then the European Union (Withdrawal) Bill (Bill 79) as advised under the
legislative consent ('Sewel') convention (cf R (Miller) v Secretary of State for Exiting
the European Union, para 150).
[7]
At the expiry of the two-year period, there may or may not be an agreement.
If there is an agreement, Parliament will have to decide whether to approve it. If it is
not approved, and nothing further occurs, the treaties will cease to apply to the
United Kingdom on 29 March 2019. The stark choice is either to approve the
agreement or to leave the European Union with no agreement. The petitioners seek a
ruling on whether there is a valid third choice; that is to revoke the notification with
the consequence, on one view, that the United Kingdom would remain in the
European Union. If that choice were available, the petitioners argue, members of the
UK Parliament could decide which of three options was preferable. They could not
only elect to reject the agreement because it was, in their view, a worse deal than
having no agreement at all, but also because both the agreement and the absence of
an agreement were worse than remaining in the European Union; a situation which
could be achieved by revoking the notification. If such revocation were not a legally
valid option, the stark choice would be all that was left. The petitioners wish to have
a definitive ruling, to enable them to make informed choices based on the options
legally available."
[121]
In determining to make a reference to the CJEU, the Lord President said, at
paragraphs 21-25,
"[21] The courts exist as one of the three pillars of the state to provide rulings on
what the law is and how it should be applied. That is their fundamental function.
49
The principle of access to justice dictates that, as a generality, anyone, who wishes to
do so, can apply to the court to determine what the law is in a given situation. The
court must issue that determination publicly. As Bankton (Institute IV, xxiii, 18) puts
it:
'[A]ll persons may pursue, for the law ought to be open to all people, to make
their claims effectual; since for every right there must be a remedy, and want
of right and want of remedy are the same thing'.
The traditional method of securing an answer to a legal question posed is by action
of declarator. `[T]he general rule is, that any right may be ascertained by a
declarator' (Barbour v Grierson, Lord Glenlee (with whom the other members of the
court agreed), p 604; Gifford v Trail, Full Bench, pp 867, 868; see also Earl of
Mansfield v Stewart, Lord Brougham, p 160). For the avoidance of doubt, this
jurisdiction is not one of parens patriae, which involves the court assuming the role of
the sovereign in relation to children or the incapable (Law Hospital NHS Trust v
Lord Advocate, Lord President (Hope), p 313).
[22]
For practical reasons, which are principally resource driven, there are limits
to the general right to a legal ruling. One is that a court should not be asked to
determine hypothetical or academic questions; that is those that will have no
practical effect. In a case where there are no petitory conclusions, the declarator
must have a purpose. There has to be some dispute about the matter sought to be
declared. The declarator must be designed to achieve some practical result. This
procedural limitation often overlaps with questions of title or interest. It was put
thus by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for
Foreign Trade [1921] 2 AC 438 (at 448, quoted in Law Hospital NHS Trust v
Lord Advocate, Lord President (Hope), at 309):
'The rules that have been elucidated by a long course of decisions in the
Scottish courts may be summarised thus: The question must be a real and not
a theoretical question; the person raising it must have a real interest to raise
it; he must be able to secure a proper contradictor, that is to say, some one
presently existing who has a true interest to oppose the declaration sought.'
All of that is sound, but its context has to be one in which the default position is that
the issue is justiciable; ie the pursuer or petitioner has a right to have the question of
law decided. The issue is correctly focused, as it is in this case, in a plea in law for a
respondent or defender.
[23]
The approach of Lord Dunedin in the related area of title and interest is set
out in what was, until recently, the locus classicus of D & J Nicol v Dundee Harbour Trs.
In D & J Nicol (pp 12, 13), Lord Dunedin confined the necessary qualifying title to
situations in which a person had `some legal relation' which created a right which
was infringed or denied by his opponent. This approach is reflected, returning to
academic questions, in the celebrated dictum of the Lord Justice-Clerk (Thomson) in
Macnaughton v Macnaughton's Trs (p 382) that:
50
'Our Courts have consistently acted on the view that it is their function in the
ordinary run of contentious litigation to decide only live, practical questions,
and that they have no concern with hypothetical, premature or academic
questions, nor do they exist to advise litigants as to the policy which they
should adopt in the ordering of their affairs. The Courts are neither a
debating club nor an advisory bureau. Just what is a live practical question is
not always easy to decide and must, in the long run, turn on the
circumstances of the particular case. I doubt whether any good purpose is to
be served by trying to extract any general rule from the decided cases. Each
case as it arises must be considered on its merits, and the Court must make
up its mind as to the reality and immediacy of the issue which the case seeks
to raise. Unless the Court is satisfied that this is made out, it should sustain
the plea of incompetence, as it is only with live and practical issues that the
Court is concerned.'
[24]
The merits, in terms of court time and parties' expense, of a restrictive
approach which limits access to the courts may be clear, but they are inconsistent
with the modern view on the functions of a court in the public law field set out by
Lord Reed in AXA v Lord Advocate (paras 159 et seq ) having regard to: (i) the
establishment of judicial review as a distinct procedure; (ii) West v Secretary of State
for Scotland; and (iii) the increase in judicial review applications. Although referring
specifically to judicial review, and distinguishing litigation under that heading from
actions to enforce private rights, Lord Reed (paras 169-171) emphasised the need for
an interests, rather than a rights, based approach in the area of public law as follows
(para 170):
'What is to be regarded as sufficient interest to justify a particular applicant's
bringing a particular application before the court, and thus as conferring
standing, depends ... upon the context, and in particular upon what will best
serve the purposes of judicial review in that context.'
He emphasised (para 169) the essential function of the courts as being `the
preservation of the rule of law, which extends beyond the protection of individuals'
legal rights.'
[25]
Macnaughton involved private succession rights and is far removed from the
present case (cf Clarke v Fennoscandia 2008 SC (HL) 122, Lord Rodger, para 29). Even
then, the Lord Justice-Clerk in Macnaughton was careful to confine his general
remarks to `the ordinary run of contentious litigation', even if they may have some
resonance in a wider context. The Lord Ordinary (Guthrie), to whose interlocutor
the court adhered, had carried out a review of the earlier authorities. While stating
(p 389) that the function of the court was not to advise parties on their future course
of action or to answer a question which may never arise, he emphasised that the
court would answer a question which was `neither academic or premature, but is
both practical and of immediate urgency' (Turner's Trs v Turner, Lord President
(Normand), p 398). He continued:
51
'If in such circumstances a party is `excusably uncertain' as to his rights, an
action of declarator can be competently raised, in order to avert the
consequences of his being compelled to test his rights by experiment - ... The
recent practice of the Court is less strict than formerly as to the competency of
actions of declarator, and `the modern tendency appears to be to open the
doors wider to such proceedings'(Turner, Lord Carmont, p 394)."
[122]
The court was satisfied that the petition was competent at least at the instance of an
MP: Lord President, paragraph 27; Lord Menzies, paragraph 29. MPs would be required to
vote on whether to ratify any agreement between the UK Government and the EU Council.
Without any other proposal a vote against ratification would result in the departure of the
United Kingdom from the European Union on 29 March. It was neither academic nor
premature to ask whether it was legally competent to revoke the notification. The answer
would clarify the options open to MPs in the lead up to what was an inevitable vote:
Lord President, paragraph 27; Lord Menzies, paragraphs 36-38; Lord Drummond Young,
paragraphs 55-58. Lord Drummond Young's analysis at paragraphs 57 to 58 focuses on the
need for MPs (and not any other class of person) to have advice as to the law in question.
[123]
MPs never required to vote on any proposal to withdraw the Article 50 notification,
and there was no contention in the case by anyone that they would.
[124]
From the reasoning of the court in Wightman I derive the following.
(1)
It is an aspect of the right of access to justice that a person may apply to the court
to determine what the law is in a given situation.
(2)
The court will not entertain hypothetical, premature or academic questions.
(3)
The circumstance that a public authority may assert that it has no intention to
take a particular course will not be determinative of whether a question is
hypothetical, premature or academic.
52
(4)
In determining what is hypothetical, premature or academic in the context of
public law cases it is essential that the court consider the matter in the light of its
function to preserve the rule of law, which extends beyond the protection of
individuals' rights.
(5)
In determining whether an individual has standing in a public law case of this
sort, the court should follow the approach desiderated in AXA and Walton, again
with a view to fulfilling its function in preserving the rule of law.
Decision - title, interest and standing
[125]
The submissions made by all parties in relation to these matters overlap significantly.
The defenders' submissions on these matters all express in slightly different ways the
underlying proposition that it is either not necessary, or not possible, for the court to
provide this pursuer with the remedy that he is seeking. The matters are very closely
interrelated, because they all turn on whether the advice of the court is required in order to
preserve the rule of law in a democratic society.
[126]
For reasons more fully set out below, I do not need to decide in the present case
whether, as the defenders assert, only those with statutory functions under the Scotland Act
could ever have sufficient interest to bring a question to the court about the lawfulness of a
proposed act of the Scottish Parliament, or to raise a question about the powers of the
Parliament other than in relation to legislation that had received Royal Assent. I doubt
whether that is in principle correct, as the question of who has standing must be determined
in the light of the need to ensure respect for the rule in relation to a particular matter.
[127]
The defenders' focus on the provisions of the Scotland Act as excluding the
jurisdiction of the court, and as the source of a definitive answer to the question whether an
53
individual had standing, meant that at times they did not seem to engage directly with what
I consider was the pursuer's central contention in this action, namely that he had standing,
and required an answer to his legal questions now, or at least before the Scottish
Parliamentary elections, because he is a voter in those elections. If the pursuer is right about
that, the remedies that the defenders say are available, whether by way of exclusive
procedure (or on the first defender's esto position, available alternative remedy) would
come too late to be of any use to him. It is for that reason that I focus below on the
contentions made by the pursuer as to why the remedy he seeks is required.
[128]
Another matter on which I do not require to reach a view is what the intentions of
the Scottish Government are as regards any draft bill. They have stated an intention to
publish a draft bill, in a publication which features in the pleadings. Both the first defender
and the pursuer to some extent asked me to speculate, by reference to statements made by
the First Minister which feature in the written arguments, but not on record, as to what the
intentions of the Scottish Government might be. The first defender invited me to look at the
now withdrawn pleadings for the Scottish Government. Even if I were to have the benefit of
a stated position from the Scottish Government in these proceedings, which I do not, that
would not be determinative of whether there was an issue of law on which the pursuer was
entitled to a ruling from the court: cf Wightman. I accept that there is uncertainty as to the
correct answer to the questions that the pursuer focuses in the conclusions, because no court
has ever answered them. The question, so far as the preliminary issues raised by the
defenders are concerned, is whether the court ought to provide an answer to one or more of
them in the circumstances of this case.
54
[129]
The pursuer offers six separate submissions as to why he is entitled to a remedy in
this action. He submitted that the court was obliged to pronounce a declarator, or
declarators, for the following reasons;
(1)
Legal certainty was needed to prevent the constitutional paralysis which would
result from a retrospective determination that an already-held referendum was
outwith the legislative competence of the Scottish Parliament.
(2)
Without certainty as to the lawfulness of any referendum to be conducted, there
would be doubt as to whether sanctions for crimes contrary to the provisions of
the Referendums (Scotland) Act 2020 might eventuate.
(3)
Members of the Scottish Parliament had to know in advance of passing
legislation for a referendum whether their actions would be intra vires.
(4)
It was not properly open to the Scottish Government to campaign for re-election
on the basis that, if re-elected to power, it would purport to act beyond the limits
of the powers imposed on it by law. That would be contrary to the rule of law.
(5)
The pursuer required the questions posed in the declarators to inform his
campaigning and the pressure he was thereby able to exert on politicians. In
Article 3 of condescendence he pleads that he
"has a constitutional right to obtain legal certainty on this issue to allow him,
and all other individual members of civil society both in Scotland and across
the United Kingdom, to be able, in a properly informed way, to exercise their
democratic rights as citizens of publicly campaigning and political lobbying
on the issue of possible future constitutional change in our democratic
structures."
(6)
The pursuer says he has a sufficient interest as a voter, and also that the issues
are not hypothetical as regards his interests as a voter. He advances these
propositions on the following bases.
55
(i)
The pursuer avers that as an enfranchised individual voter resident in
Scotland, he is a relevant "decision-maker" in the context of the introduction,
promotion or passing of legislation in the Scottish Parliament: Article 4 of
Condescendence.
(ii)
He avers also that as a voter he is a person affected by the matter to which the
subject matter relates: Article 4 of condescendence. He expands on this
averment by saying in his note of argument that there is a real question of law
for this court to consider and determine to allow the pursuer (and all others
having the right to vote in these elections) properly to exercise their
democratic right and responsibilities as voters.
[130]
Points (1) and (2) are plainly raised prematurely. They are also hypothetical, and
may never come to pass. They proceed on the assumption that a referendum is to be
conducted, or has actually already been conducted, under an act of the Scottish Parliament
which may be ultra vires. First, each of these propositions depends on there being an act of
the Scottish Parliament under which a referendum might proceed or have proceeded. It
would be that act, as passed by the Scottish Parliament, that would require to be scrutinised
as to its legislative competency. Answers provided by the court now, whether in the
abstract, or on the basis of a draft bill, would not serve to avoid the difficulties apprehended
by the pursuer. Second, there is no need for the court to try to provide an answer at the
present time. Other remedies would be available at the time any legislation came to be
passed. The bill in question might be referred to the Supreme Court by a law officer before
Royal Assent. If it were not, the act could be subject to judicial review after Royal Assent.
That could all be achieved before any referendum was conducted in reliance on the act in
question.
56
[131]
So far as point (3) is concerned, it will generally, as I have already indicated, be
premature and pointless for the court to adjudicate as to the lawfulness of a proposed act of
Parliament at any point before it is passed, because it is open to change by way of
amendment at the hands of the Parliament itself until it has been passed. Advice in the
abstract, or about a draft, or even a bill as presented, would not necessarily avail Members of
the Scottish Parliament who wanted to know whether their vote would result in the passing
of legislation that was ultra vires.
[132]
Point (4) is formulated so as to raise a question about the vires of the Scottish
Government, and possibly an apprehension that the government might, presumably by
campaigning on the draft bill which it has said it will publish, act unlawfully. I understand
it to be an aspect of the pursuer's case, related to points (5) and (6), that the electorate
requires a determination in order to be able to exercise the right to vote in accordance with
the rule of law. I turn, therefore, to points (5) and (6). Like Wightman this is not a case in
which the pursuer seeks to bring any violation of the law to the attention of the court.
Rather, he seeks advice as to the state of the law, and asserts that he has a need to, and right
of, access to the court for it to provide an authoritative determination because the rights to
campaign, and to vote, are of the essence of the rule of law in a democratic society. It is
obviously correct that the rights to campaign and to vote are of fundamental importance in a
representative democracy.
[133]
The First Division was discriminating in its approach to sufficient interest in
Wightman. It was satisfied as to sufficient interest in relation only to the MPs who would
have to participate in an inevitable vote, for which provision had already been made in
statute. It is not (contrary to the pursuer's submission) to understate or undervalue the
importance of the individual franchise in general elections to note that the MPs in Wightman
57
were acting in their capacity as elected members of Parliament in a representative
democracy. Their votes would directly determine a matter of importance to every citizen of
the United Kingdom. They were voting in relation to a single issue.
[134]
The Lord President said that the answer provided by a declarator "[would] have the
effect of clarifying the options open to MPs": paragraph 27. The context, as set out above,
was one of two options - ratification of the agreement, or leaving the EU with no agreement.
The declarator would inform MPs as to whether there could ever, as a matter of law, be a
third option. Lord Menzies analysed the case as one concerning an impending decision
involving a choice, in which it was contended that in order to make the choice the
decision-maker needed to know with certainty the proper meaning of a legal provision:
paragraph 36. It was legitimate for those involved in the vote to know the meaning of
Article 50 of the Treaty on European Union with respect to the potential for revocation of the
notification: paragraph 37. Lord Drummond Young said that it was impossible to hold that
the question of the withdrawal of the Article 50 notification was irrelevant to Parliament's
deliberations. He noted that some MPs appeared to consider it significant. It was not,
however, for the courts to tell MPs what considerations they should regard as relevant:
paragraph 58.
[135]
Point (5) does not support the contention that there is a need for a determination in
order to preserve the rule of law. How the pursuer and other campaigners decide to carry
out campaigning activities and the questions they choose to pose to elected politicians are,
generally, a matter for them. Depending on the nature of the interests of particular
campaigners, it might be advantageous or otherwise to a campaign if the court were to grant
one or more of the declarators sought. If the court were to find that the position in law were
otherwise than that asserted in the declarators, it might provide campaigners with a basis
58
for focusing their activities in a particular way or direction. None of that indicates that the
rule of law risks being undermined in the absence of a determination from the court. It is
advice of a nature properly characterised as directed merely to individuals' determining
how to order their own affairs. The ability to campaign politically or lobby for a desired
result does not necessarily depend on information as to whether or not that result can be
achieved without a change in the existing law. There is not the close relation between the
right to campaign and the advice sought that there was between the vote in which the MPs
in Wightman were to be engaged and the advice that they sought.
[136]
In relation to point (6) it is relevant to note, first, that the pursuer is an enfranchised
voter in a system of representative democracy. In the forthcoming elections he and every
other voter has the right to vote for representatives in the Scottish Parliament. It is correct to
say that Parliament derives its authority, strength and legitimacy from the electorate. It is,
however, the elected members who then go on to make judgements, in their capacity as
legislators, as to what is in the country's best interests as a whole: Lord Hope, AXA,
paragraph 49. The representatives derive their authority from the voting decisions of the
pursuer and others enfranchised to vote in the election. The proportions in which
representatives from different parties, and independent candidates, are elected will no
doubt affect what bills come to be introduced, what bills come to be passed, and the terms in
which they come to be passed. It is, however, those representatives constituting the
Parliament, and not the individual voters, who are the decision-makers in relation to the
introduction, promotion and passing of legislation. I do not accept as correct the pursuer's
characterisation of individual voters as the decision-makers in relation to the introduction,
promotion or passing of particular pieces of legislation.
59
[137]
Second, exercising the right to vote in a parliamentary election is not directly
comparable to the vote in which the MPs in Wightman were to participate. Parliamentary
elections are the subject of campaigning by a multiplicity of parties about a multiplicity of
issues. They do not, as a referendum may, necessarily involve voting on a single issue.
There is, again, not the close relation between the advice sought and the vote to be
undertaken that there was in Wightman. Beyond a broad assertion that a determination of
the law is necessary to allow voters to exercise their democratic rights and responsibilities,
the pursuer does not elaborate on what choice, or choices, would be informed by that
advice, or the relevance of the advice to the choice or choices involved in casting votes in the
election in question. The pursuer has not demonstrated that it is required in order for
democracy in Scotland, in the context of the forthcoming elections, to operate in accordance
with the rule of law for the court to provide advice in the form of the declarators sought.
[138]
I observe that there is in theory no limit to the number of issues about which
politicians might make proposals in the lead up to elections, and in relation to which voters,
or some voters, might be in more or less doubt as to the potential for their lawful execution.
It does not follow that advice from the court is needed about them to permit voters to
exercise their democratic rights.
[139]
The action is for these reasons, hypothetical, academic, and premature, and the
pursuer lacks standing to bring it. For the reasons given above, I would have reached the
same conclusion even if a draft bill were available for consideration. I express no separate
conclusion in relation to the proposition that the declarators sought are too vague. It is
unnecessary to do so in order to dispose of the action.
60
Separation of powers
[140]
Having reached the view that I have in relation to standing, prematurity and the
hypothetical nature of the proceedings, I do not require to determine whether to grant the
declarators sought would have been incompatible with the separation of powers. A
declarator as to the state of the law would not compel the Scottish Government, the United
Kingdom Government, or the Scottish Parliament to act in any particular way. It may be
that the matter is not really one of separation of powers, in that the court would not impede
or intrude on the work of parliament: see Wheeler, paragraph 46.
[141]
It is, however, important, that matters which may properly be the subject of political
debate and campaigning in the democratic process are permitted to unfold and be worked
out in the political process, and that the courts intervene only when they need to do so to
fulfil their function as guardians of the rule of law. The courts will clearly intervene to
determine allegations of unlawfulness. Where, however, there is no allegation of
unlawfulness, and the court is asked for a determination as to the state of the law in an area
which is the subject of current political debate and controversy, it will be important to
ensure that the question of whether an answer is required in order to protect the rule of law
is addressed with rigour.
Disposal
[142]
Having reached the view that I have as to the preliminary issues raised by the
defenders, I consider that it is unnecessary, and would be inappropriate, for me to express
an opinion on the question of law focused in the first declarator.
61
[143]
I therefore sustain the first to fourth pleas in law for the first defender, and the first
and second pleas in law for the second defender and dismiss the action. I repel the third,
sixth and seventh pleas in law for the second defender.
62
Appendix
Procedural matters 30 September 2020 to 12 January 2021
30 September 2020
1.
Senior counsel for the pursuer made a motion at the hearing for permission to have
Indylive, an online radio station, transmit a live audio feed of the hearing. He produced a
note of written submissions in support of the motion and made oral submissions. The
pursuer had approached the court administration on the day before the hearing regarding
the request and had been referred to the Protocol on Recording and Broadcasting of
Proceedings in the High Court of Justiciary ("the protocol").
2.
Senior counsel for the defenders said they had received the note of submissions only
shortly before the hearing. They did not oppose the motion, but said it was a matter for the
court. Senior counsel for the pursuer referred to the guiding principles in the protocol,
including the principle of open justice. He submitted that the protocol did not have the
force of law, and was simply indicative of the court's approach to requests to record and
broadcast. He referred to Scott v Scott [1913] AC 417, at 475; R (Mohammed) v Secretary of
State for Foreign and Commonwealth Affairs [2011] QB 218, at paragraph 38; R (Guardian News
and Media Ltd) v City of Westminster Magistrates' Court [2013] QB 618, at paragraphs 1, 2; A v
Connaught Laboratories [2000] FSR 1, at 15-16; GIO Personal Investment Services Ltd v Liverpool
and London Steamship P&I Association Ltd [1999] 1 WLR 984, at 996E-G; Lily Icos Ltd v Pfizer
Ltd (2) [2000] 1 WLR 2253, at paragraph 25(i); and R v Howell [2002] EWCA Crim 486, at
paragraph 197. All of these authorities essentially vouch the same well-established
63
principle, namely that the doors of the court must be open if the court is to be subject to the
public scrutiny that is essential to its authority to preserve the rule of law.
3.
I had no difficulty in accepting that consideration must be given to how best to
provide public access to the hearing in the context of remote hearings during the COVID-19
pandemic. The part of the protocol relating to legal debates in civil first instance
proceedings provides a process for consideration of applications to broadcast, including
livestreaming, and which takes into account, amongst other things, the journalistic or
documentary-making experience and qualifications of the applicant. It makes provision for
the sharing of material with other broadcasters and imposes certain other requirements on
the broadcaster. An application is considered by the Broadcast Working Group, which seeks
the views of the presiding judge, and the Broadcast Working Group then makes
recommendation to the Lord President or Lord Justice Clerk. Requirements on the
broadcaster additional to those in the protocol may be specified. The protocol provides an
orderly procedure for consideration of a range of relevant matters on the basis of
information submitted in an application. I considered that any application to livestream
proceedings using a radio station ought to be made using the process in the protocol, and
refused the motion.
4.
All subsequent hearings in the case were conducted remotely using Webex Events,
which allowed a remote audio and visual hearing, and provided a facility for up to one
thousand listeners to access a live audio feed of the proceedings.
5.
In the course of this hearing, senior counsel moved for commission and diligence in
terms of a specification of documents which sought recovery of the following:
"1. The draft Bill (referred to both by the pursuer and by the second defender in
their respective pleadings), whether in the hands of the second defender or of the
Scottish Ministers, Victoria Quay, Edinburgh EH6 6QQ, or those acting on their
64
behalf, together with all draft sections, draft explanatory notes and draft guidance
related to the said draft Bill.
2. All documents (as defined at section 9 of the Civil Evidence (Scotland) Act 1988
and whether held electronically or otherwise), in the hands of the second defender or
of the Scottish Ministers or anyone on their behalf relating to the draft Bill, proposing
a referendum on Scottish independence during or after 2021, and containing entries
showing or tending to show
a. The terms on which the referendum is proposed; or
b. The date on which the referendum is proposed; or
c. The question to be asked at the referendum; or
d. The rules of enfranchisement for the referendum; or
e. The considerations anent the requirement for approval from the UK Government
for such a referendum;
in order that excerpts may be taken therefrom at the sight of the commissioner of all
such entries.
failing principals, drafts, copies or duplicates of the above."
6.
At the point at which I dealt with this motion, there was an open amendment
process. The second defender had lodged a minute of amendment seeking to delete
averments to the effect that work on an independence referendum had been paused because
of the COVID-19 pandemic, and to introduce averments that:
"The Scottish Government has indicated its intention to publish a draft Bill before the
end of the current parliamentary session (which is anticipated to occur in
March 2021)."
7.
The pursuer's answers included an admission in relation to that averment. The
answers also included calls for production of that bill, and calls on the defenders to
withdraw their pleas to the effect that the action was academic, incompetent or premature.
8.
The second defender opposed the motion for commission and diligence on the basis
that the material sought was irrelevant to the matter raised for determination by the Court.
The pursuer sought a declaration in abstract terms, and not by reference to any published
bill. The documents sought did not exist, and in any event no preliminary work relative to a
65
draft bill could be treated as representative of the final position of the Government on the
draft to be published by March 2021. An early working draft could not assist the court. It
would in any event be wholly inappropriate for the court to order the disclosure of
information about the ongoing development of the Scottish Government's policy in relation
to a draft bill. Any draft bill eventually published might or might not represent the text of a
bill introduced in or passed by the Scottish Parliament. It was premature for the court to
consider a specification of documents where the pleadings were not finalised, and the
second defender sought a debate on preliminary issues of competency, relevancy, standing
and prematurity, none of which required access to documents for their resolution.
9.
Senior counsel for the pursuer submitted, both in writing, and orally, that it was the
second defender who had introduced reference to the draft bill into the pleadings. The issue
whether it was within the legislative competence of the Scottish Parliament to pass the draft
bill in the form and on the terms presented to it was central to Scottish Government policy
and to the question raised in the present case. The purpose of the motion was the
conventional one of seeking recovery of a document in order to make more specific or
pointed averments in an existing case. The Lord Advocate's assertion that no relevant
documents existed was not a good reason for the court to refuse the motion, and nor was his
assertion that documents recovered would not assist the court. As to "appropriateness",
documents might be produced in a sealed envelope, for examination by the court during or
after debate as to whether the Lord Advocate had made out a case for their non-disclosure.
The pursuer's position was that it was essential that the electorate know whether the draft
bill was within legislative competence. Otherwise they would be voting in ignorance on
that matter, and there was a risk that a fraud would be perpetrated on the electorate. The
66
averments about the policy of the Scottish Government had been introduced in the interests
of candour.
10.
Counsel referred to Paterson v Paterson 1919 1 SLT 12; Bank of East Asia v Shepherd &
Wedderburn 1994 SCLR 536, at 588C-F, affirmed 1995 SC 255; Macrae v British Transport
Commission 1957 SC 195; Graham Builders Merchants Ltd v Royal Bank of Scotland plc 1992
SCLR 402 (Notes), at 403.
11.
I refused the motion. I proceeded on the basis that there was no technical bar to
granting a motion for commission and diligence while there was an open amendment
process. I accepted that it was entirely legitimate for a party to seek to recover documents
which would assist him in making his pleadings more specific. I noted the terms of the
declarator which the pursuer sought, which at that point was only that sought in the first
conclusion, and that it was sought on the basis of the pleadings in Articles 12 to 17 of
condescendence, which gave notice of the pursuer's position regarding the law relevant to
the legislative competence of the Scottish Parliament with regard to provision for
referendums. I was not satisfied that recovery of a draft bill would enable the pursuer to
make those pleadings more pointed or more specific. A case proceeding on the basis of
argument as to whether or not a particular draft bill was within legislative competence
would not be the pursuer's present case made more specific, but would be a different case
entirely.
4 November 2020
12.
The case called on the by order adjustment roll. Parties agreed that the matter
should be sent to debate. They disagreed as to the scope of that debate. The pursuer moved
for debate to be on all pleas, including his own for decree de plano. The defenders sought
67
debate on their preliminary pleas to the effect that the proceedings were academic,
incompetent, premature, hypothetical, contrary to the constitutional principle of the
separation of powers, and inconsistent with the structures of the Scotland Act, and to the
effect that the pursuer lacked title, interest or standing. To allow a debate on all pleas would
risk the court's adjudicating on issues which, according to the preliminary pleas, it ought to
regard as non-justiciable.
13.
The pursuer maintained it was not open to me to allow a debate restricted to specific
pleas, other than on the consent of parties: RCS 22.3; McIntosh v Cockburn & Co 1952 SC 88.
The defenders submitted that it was open to me to restrict debate to their preliminary pleas,
citing McGinty v Scottish Ministers [2011] CSOH 163 and J v Lord Advocate 2013 SLT 347, both
of which are cases which proceeded as judicial reviews. I did not require to determine
which contention was correct. This case was, on the pursuer's analysis, time-sensitive. If the
pursuer was right, he required a determination of his substantive case before the Scottish
Parliamentary elections. It would not have been efficient to restrict the scope of debate with
the consequence that if the defenders' preliminary pleas were repelled there might have to
be a second stage to the debate. I considered that it was a matter for the defenders which of
their pleas they chose to move at that debate, and whether or not they chose to engage with
the pursuer's substantive case, or simply to rely on their own preliminary pleas. The
defenders would not be inhibited from seeking to persuade me that I should not determine
or express a view about the substantive matter raised by the pursuer. A procedure roll
debate was set for 21 and 22 January 2021.
68
12 January 2021
14.
The pursuer moved a specification of documents in identical terms to the one already
mentioned. Subsequent to my decision of 30 September, the pursuer had introduced a
second conclusion:
"For a declarator that the Scottish Government's proposed Act of the Scottish
Parliament concerning an independence referendum contains no provision which, if
passed by the Parliament, would be outside its legislative competence."
15.
Senior counsel submitted that it was clear from the notes of argument prepared for
the procedure roll debate that both defenders would rely on the absence of a draft bill, and
argue that the declarators sought should be refused because they were insufficiently specific,
and that the court could not determine the question of legislative competency in the abstract.
The defenders raised that specifically in relation to the pursuer's second conclusion. Against
that background, there had been a material change of circumstances since the motion was
last before the court.
16.
The only test that the court should apply was whether or not a relevant basis for
recovery had been set out in the pleadings: Henderson v Robertson (1853) 15 D 292;
McInally v John Wyeth & Brother Ltd 1996 SLT 1223; Somerville v Scottish Ministers 2008
SC (HL) 45; and Cherry & Others.
17.
He submitted that recovery was not sought with a view to making the pleadings
more specific, but in order to provide the court with "documentary evidence bearing on the
issues of law raised by the defenders". Notwithstanding the submission that he was not
seeking the documents with a view to making his pleadings more specific, he referred to the
following passage in Bank of East Asia at 588C-F in support of his motion:
"In the present case, the pursuers are faced with a challenge by the defenders to the
relevancy and specification of their pleadings. This is evident from the fact that the
defenders have insisted that their [first] plea-in-law should be discussed at procedure
69
roll, having declined to consent to a proof before answer. Thus, in the procedure roll
discussion which may occur in this case, the pursuers can expect that the relevancy
and specification of their pleadings will be the subject of serious criticism.
That being so, it may well be necessary for them to consider, in the face of such
arguments, whether they are in a position to amend their pleadings to meet the
arguments that may be deployed against them. If they were not, in that situation, to
be in possession of the relevant documentary material, it might well be that they
would be unable to reach an early and definite decision on such a matter. In that
event, they might well then have to resort to approaching the court for commission
and diligence to recover documents."
18.
The second defender opposed the motion. Whether a bill was within the legislative
competence of the Scottish Parliament depended on its terms when introduced and when
passed. Any draft published by the Scottish Government in due course might or might not
represent the text ultimately introduced in or passed by the Parliament. The action would
fall to be dismissed whether or not a draft bill was available, as would be submitted at the
procedure roll debate. The Scottish Government's stated intention was to publish a draft bill
before the end of the current parliamentary term in March 2021. The pursuer's motion was
an illegitimate attempt to use the court's powers to force the Scottish Government to depart
from its stated policy and to secure the disclosure of a draft bill at a time of the pursuer's
choosing. The pursuer's second conclusion could not support the recovery or disclosure of
any draft bill before its publication by the Scottish Government. Senior counsel for the
second defender questioned the professional propriety of seeking a declarator in terms of
the second conclusion, in circumstances where the pleader could have had no idea as to the
terms of the "proposed act" in question. There was no proper basis for that conclusion. It
was fallacious to plead first and then seek documents to provide a proper basis for the
pleadings.
19.
No preliminary work relating to a draft bill could be treated as being representative
of the final position of the Scottish Government on the draft bill that was to be published in
70
due course. Having sight of a working draft of the bill or any documents falling within the
scope of the calls in the pursuer's specification, could not assist the court in disposing of this
action. It would be inappropriate for the court to order the disclosure of information about
the ongoing development of the Scottish Government's policy in relation to a draft bill. The
logical consequence of the pursuer's approach was that any statement of intention as to
future policy would provide a basis for a pursuer to raise proceedings seeking clarification
as to the legality of the policy, and ask the court to "open up the government's filing cabinet
ahead of time".
20.
He observed that the motion had been left until very shortly before the procedure
roll debate, although the pleadings had been in their final form since the by order
adjustment roll hearing.
21.
Senior counsel for the pursuer responded by submitting that the pursuer relied on
the fact that if any bill were introduced, a minister would require to make a statement in
terms of section 31 of the 1998 Act that it was within the legislative competency of the
Scottish Parliament.
22.
I refused the motion for commission and diligence. What had changed since the
pursuer last moved a similar motion was that the pursuer had added a second conclusion to
the pleadings. In oral submissions senior counsel for the pursuer confirmed that he had no
knowledge of the content of the proposed act, and that he said he was relying on the
responsibility of those placing any bill before the Scottish Parliament as regards the
statement they would have to give as to their opinion that it was within legislative
competency. Those statements must, of course, be made in good faith, and are made,
presumably, on the basis of legal advice. They are not, however, determinative of the
question. As is amply vouched in authorities cited elsewhere in this opinion, statements by
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politicians are not determinative of the law. Although the terms of the statute considered by
the Supreme Court in Christian Institute were not identical to those of the bill as introduced,
it is clear that the section 31 statement of view in that instance must have been incorrect so
far as the information sharing provisions in part 4 of the bill were concerned.
23.
A conclusion so drafted did not provide a proper basis on which to order the
recovery of the documents sought. It remained the case that the pursuer had no averments
about the content of any bill or draft bill to justify recovery. There were none that fell to be
rendered more specific. I regarded the motion as a fishing diligence which fell to be refused.
24.
I observe that the authorities bearing on commission and diligence are generally in
relation to recovery to enable detailed pleading about, or proof of, something which has
already happened, not about recovery of documents that may reflect the terms of a draft bill
to be published in the future. There was considerable force in the second defender's
submission that any draft available in January 2021 was not the "draft bill" or "proposed
act" in relation to which the pursuer submitted he needed a determination from the court.
On the pursuer's hypothesis, the bill about which he needs advice is the one that comes to be
published before the election. What relation any draft or preparatory documents that might
be recovered in January 2021 would have on a draft bill in relation to which a minister might
come to make a statement in terms of section 31 is a matter of speculation.
25.
I add the following observations. I doubt the constitutional propriety of requiring a
government to disclose material relevant to the formation of policy, or the terms of a bill,
while policy is in development and before any draft bill or bill has been published in the
circumstances of this case. Absent allegations of unlawful acts or omissions requiring the
intervention of the court to preserve the rule of law, governments are generally entitled to
develop policies and proposals and decide for themselves whether and when to publish
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them without interference. There is no allegation of unlawfulness or abuse of power in this
case.
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