Legal arguments on competence to hold Scottish independence referendum conclude in Outer House

The Outer House of the Court of Session has heard a second day of oral submissions in an action seeking declarator that the Scottish Parliament has competence to hold a referendum on Scottish independence without the consent of Westminster.

Continued submissions were made on behalf of the Advocate General for Scotland, the first defender in the action raised by Martin Keatings, the convenor of the Forward As One campaign group, followed by submissions for the Lord Advocate, as well as replies.

Aidan O’Neill QC and David Welsh appeared for the pursuer. David Johnston QC, Andrew Webster QC and Chris Pirie appeared on behalf of the Advocate General for Scotland while James Mure QC and Christine O’Neill QC appeared for the Lord Advocate. The reporter for the Scottish Council of Law Reporting was Jacqueline Fordyce.

The case is being heard by Lady Carmichael in the Outer House.

No practical effect 

In the previous day’s proceedings, submissions were heard on behalf of the pursuer followed by the commencement of submissions for the Advocate General. The Advocate General’s arguments were presented by David Johnston QC, appearing with Andrew Webster QC and advocate Chris Pirie

Continuing his discussion from the previous day of the Scotland Act 1998, counsel for the Advocate General submitted that the pursuer did not have sufficient interest to have standing to bring the action. There was no enforceable right to have the issue determined, and the pursuer was not subject to the threat of having fundamental rights taken away from him. 

Mr Johnston sought to distinguish the case of Wightman v Secretary of State for Exiting the European Union (2018) on account of that case being raised by a Member of Parliament. It was clear from that case, which identified limits to the general right to a legal ruling, that there was no “free for all” allowing individuals to come to court seeking a hypothetical advisory declaration on any piece of legislation. 

In this case, it was argued, section 33 of the 1998 Act made the present action unnecessary because it provided the means by which the court was to discharge its constitutional function in order to secure the rule of law. There was nothing anti-democratic about this, as claimed by the pursuer, because the statutory scheme implemented the will of the democratically elected legislature.  

Mr Johnston further submitted that the declarators sought would have no practical effect, as nobody had stated an intention to introduce an independence Bill before the next Scottish election and in any event the pursuer would not be voting on it. The pursuer assumed that a referendum would be held, but there was no basis for this assumption. 

In conclusion, Mr Johnston submitted that advisory declarations of the courts needed to have meaningful legal content, and this could only be achieved when the court was faced with precise legislative measures. In this case, no such measures existed, so there would be no value in applying a legislative competence test. 

Creating a “juristocracy” 

The arguments for the Lord Advocate were presented by James Mure QC, appearing with Christine O’Neill QC. Mr Mure began by noting that there was a great deal of common ground between the positions of the Lord Advocate and the Advocate General. His submissions were made primarily in respect of standing and whether the present action was an application to the supervisory jurisdiction. 

It was stressed that the Lord Advocate was not representing or defending the Scottish Government in this action, following its withdrawal of defences in August 2020. The Lord Advocate made submissions in order to make sure that the law bearing on the 1998 Act and the constitutional structure as he saw it were properly construed. 

Mr Mure submitted that measures for the scrutiny of Scottish Parliament Bills were provided in section 31 of the 1998 Act. If the court had advisory jurisdiction in respect of Bills, people with views could seek declarations to further their own views about what was introduced or passed by the Scottish Parliament, possibly to influence others. This might end up creating a “juristocracy”, an expression coined by the pursuer, in which court opinions would be prayed in aid and affect parliamentary discussions, rather than giving the legislature time and space to discuss the matters it wished. 

It was further submitted that the pursuer’s application was properly an application to the court’s supervisory jurisdiction. As a result, the pursuer was required to obtain permission to proceed under amendments to the Court of Session Act 1988 made by the Courts Reform (Scotland) Act 2014. The court could only grant permission to proceed if the applicant demonstrated sufficient interest in the subject matter and the application had a real prospect of success.  

Mr Mure concluded that the first declarator sought by the pursuer was abstract, premature and ran against the constitutional settlement, while the second declarator was simply based on no text at all, and it was appropriate for the court to refuse both at this stage.  

Live and proper question 

A reply for the pursuer was presented by Aidan O’Neill QC, appearing with advocate David Welsh. Mr O’Neill submitted that this case fell within the limits of other cases in which private citizens had demonstrated they had brought live and proper questions before the court, including Vince v Prime Minister (2019) and Maugham, Petr (2019), the petitioner in the latter case also having been party to Wightman as well as Cherry v Advocate General (2019)

It was said that there was no risk of “clogging up” the courts with matters of election manifestos due to the high level of expense involved in raising an action, noting that the pursuer had previously been refused a Protective Expenses Order limiting the costs he may be subject to should his action fail. 

Mr O’Neill submitted that the pursuer was seeking clarification in order to best exercise the right to vote in a properly informed and constitutional way. The people had a right to know whether their vote could elect a government capable of holding a referendum on its constitutional future, and the court had a duty to provide the answer. 

Following Mr O’Neill’s reply, Mr Johnstone made a brief reply in respect of points the pursuer had not introduced previously. Following this, the court made avizandum. Lady Carmichael stated that she will endeavour to write “very quickly” on the case.