Independence campaigner loses appeal on Scottish Parliament’s competence to independently legislate for indyref2

A reclaiming motion by a campaigner for Scottish independence against a judge’s decision that his action seeking declarator that the Scottish Parliament could legislate for a second independence referendum without the consent of Westminster was premature and academic has been refused by the Inner House of the Court of Session.

The pursuer and reclaimer, Martin Keatings, an independent candidate in the Mid Scotland and Fife region in the 2021 Holyrood elections, argued that an answer was needed in order for the electorate to make an informed choice regarding Scotland’s future. The Advocate General for Scotland and the Lord Advocate appeared as defenders and respondents to the appeal.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Doherty. The pursuer was represented by Aidan O’Neill QC (Scot) QC, the first defender by Andrew Webster QC, and the second defender by James Mure QC and Christine O’Neill QC.

Premature and hypothetical

The pursuer had sought declarators that the Scottish Parliament has power under the Scotland Act 1998 to legislate for an independence referendum without requiring the consent of the UK Government, and that a “proposed Act” drafted by the Scottish Government concerning an independence referendum, later submitted as a draft Bill to the Parliament, contains no provisions which would be outside the Parliament’s legislative competence.

By interlocutor dated 5 February 2021, the Lord Ordinary sustained the defenders’ pleas that the action was academic, hypothetical, premature and thus incompetent, but repelled the plea that it was inconsistent with the powers of the Scottish Parliament under the 1998 Act. The pursuer reclaimed the decision that the action was incompetent, with the defenders also reclaiming the action in relation to the 1998 Act issue.

The Lord Ordinary held that the pursuer’s contention that the electorate needed a definite answer to these questions in order to prevent “constitutional paralysis” was premature, and that MSPs had to know whether their actions in passing a referendum Bill would be intra vires. The pursuer had not demonstrated that a decision was required in order for democracy to operate in accordance with the rule of law.

It was submitted for the pursuer that voters needed a ruling on what was a live question of law to allow their votes to be cast in an informed way. Democracy required that voters should know if and when campaign and manifesto promises would be carried out in order to achieve politically and legally responsible governance. Further, MSPs required to know whether the bill was within competence to prevent them from being guilty of unduly influencing voters.

The first defender submitted that the 1998 Act scheme for determining whether a Bill would be within the powers of the Parliament excluded any common law right to a declarator. The Lord Ordinary had correctly determined that the issue was premature, hypothetical, and academic. Nothing suggested that the Scottish Parliament would definitely legislate in the manner described.

Counsel for the second defender added that only the UK Supreme Court was entitled to determine legislative competence prior to Royal Assent, in terms provided for by Section 29 of the 1998 Act. To allow otherwise could significantly disrupt the work of Parliament. Further, the Government could give no enforceable legal promise that a future government would introduce a referendum Bill.

Short of sufficient basis

The opinion of the court was delivered by Lord Carloway. On the issue of prematurity, he said: “Where a bare declarator is sought, it must have a purpose. It must produce a practical result. In so far as this overlaps with title and interest (standing), the result must be one for the person seeking the remedy, although it may also affect others.”

Applying this principle to the case at hand, he continued: “The court does not accept that the pursuer requires a declarator of the law in order to exercise his right to vote at the forthcoming election. Even in the unlikely event that his voting decisions might be influenced by whether or not the Parliament has the competence to pass an Act in terms of the draft Bill, that fact would fall far short of providing a sufficient basis for the court to adjudicate upon the issue.”

Regarding the draft Bill, he said: “A draft Bill has no legal status. The result of the election is not yet known. A Bill may or may not be introduced, depending upon the Government formed as a consequence of the election. If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended.”

He continued: “If the Bill were passed without [a Section 30 order under the 1998 Act], it is highly probable that the UK Government’s law officers would refer the Bill for scrutiny by the UK Supreme Court. All of these eventualities render the current remedies sought premature, hypothetical and academic. A decision by this court on the matters litigated would serve no practical purpose.”

Recipe for chaos

Addressing the 1998 Act arguments in respect of Holyrood’s competence, Lord Carloway explained: “This is a situation in which the statute which creates the relevant institution provides a specific remedy in relation to a particular, matter, viz. the scrutiny of Bills; the latter being a temporary state given the ability of an affected person to challenge any subsequent Act. Where such a specific statutory remedy is inconsistent with the use of an ordinary one, the latter may be held excluded by necessary implication. That is the situation here.”

He continued, citing Lord Millet’s judgment in Johnson v Unisys Ltd (2001)]: “If it were otherwise, there would be the potential for conflict between applications which challenge competency made by other persons to the Court of Session or a sheriff court in advance of Royal Assent. Put another way, ‘the coexistence of two systems, overlapping but varying in matters of detail… would be a recipe for chaos’.”

Lord Carloway concluded by addressing the potential merits had the case been accepted: “The question would have been whether an Act to hold a referendum on Scottish Independence ‘relates to the Union of the Kingdoms of Scotland and England’ or ‘the Parliament of the United Kingdom’, having regard to its effect in all the circumstances. The Act would relate to these reserved matters if it had ‘more than a loose or consequential connection with them’. Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.”

For these reasons, the court adhered to the Lord Ordinary’s interlocutor and dismissed the action.

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