‘Hypothetical’ indyref2 case rebuffed in Outer House

Court of Session Outer House
Court of Session Outer House

The Outer House of the Court of Session has refused to grant declarator to the effect that the Scottish Parliament should be able to legislate for a second referendum on Scottish independence without the consent of Westminster, calling the action “hypothetical, academic, and premature”.

Martin Keatings brought the action arguing he had standing as a voter in the upcoming Scottish parliamentary elections. The Advocate General for Scotland and the Lord Advocate appeared as the first and second defenders respectively, with the Scottish Ministers withdrawing as a third defender in August 2020.

The case was heard by Lady Carmichael. Submissions were heard over two days at the end of January 2021, following the refusal of a motion for a protective expenses order for Mr Keatings in July 2020.

Fraud on the electorate 

The pursuer, the convener of the Forward As One group and an independent parliamentary candidate for Mid-Scotland and Fife in the upcoming Holyrood election, sought declarators that the Scottish Parliament had the power under the Scotland Act 1998 to legislate for a second referendum without UK consent and without further amendment of the 1998 Act, and that the Scottish government’s proposed act concerning such a referendum contained no provisions which would be outside its legislative competence. 

The proposed act was based on statements made in a Scottish government document entitled “Protecting Scotland, Renewing Scotland”, which stated an intention to publish a draft Bill for an independence referendum “before the end of this parliament, to set out the terms of a future referendum clearly and unambiguously to the people of Scotland”. The pursuer had twice sought the recovery of this draft bill, both times unsuccessfully. 

The main focus of the pursuer’s arguments was that he, and other voters, needed to know the legal position on these matters before the election in order to determine how to campaign and how to cast their votes. Any suggestion that the issue be clarified after the election risked fraud on the electorate, and it was not open to the Scottish Government to campaign on the basis that it would act beyond the limits of its powers if re-elected. 

In their arguments, the defenders submitted that the proceedings were academic and incompetent. It would not be legally sound for the court to express a view on a hypothetical Act of the Scottish Parliament, and the action fell within the court’s supervisory jurisdiction rather than being covered by an ordinary action for declarator. 

Not supervisory 

In her opinion, Lady Carmichael first addressed the question of which jurisdiction the case fell under.

She said of this: “This case is one, like [Wightman v Secretary of State for Exiting the European Union (2019)], 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.” 

She continued: “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 in the declarators raise issues of vires, these proceedings are not applications to the supervisory jurisdiction.” 

Having clarified this matter, Lady Carmichael went on to examine the scheme of the 1998 Act, saying: “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.” 

Of that argument, she said: “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.” 

Not required for democracy to operate 

Lady Carmichael next turned to the question of the pursuer’s legal standing. About this, she said: “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.” 

However, she added: “Each of [the pursuer’s] 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.” 

Addressing the submissions that the matter would have an effect on the upcoming election, she said: “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.” 

She continued: “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.” 

Lady Carmichael concluded: “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.” 

For these reasons, the pursuer’s motions were refused. The pursuer has indicated he plans to appeal the decision to the Inner House. 

© Scottish Legal News Ltd 2021

Other judgments by Lady Carmichael