Keatings v Advocate General, the referendum powers case
Please note that these summaries of the oral submissions in this case have been posted in reverse order so that the note of Day Two's hearing precedes the summary of the submissions at Day One's hearing.
Day Two: The following is a summary of the oral submissions that were presented at the continued hearing before Lady Carmichael in the Outer House of the Court of Session on Friday 22 January 2021, prepared by a Reporter for Session Cases who was in attendance.
- The hearing commenced by resuming the arguments on behalf of the Advocate General, presented by David Johnston QC (appearing with Andrew Webster QC and Chris Pirie, Advocate).
- There followed the arguments on behalf of the Lord Advocate, presented by James Mure QC (appearing with Christine O’Neill QC (solicitor-advocate)), a reply on behalf of the pursuer by Aidan O’Neill QC (appearing with David Welsh, Advocate), and a further short reply on behalf of the Advocate General.
Submissions on behalf of the Advocate General
- Senior counsel for the Advocate General resumed his discussion of the significance of the statutory scheme under the Scotland Act 1998 (“SA 1998”) and turned to the question of the pursuer’s standing in that context. It was accepted that the appropriate question in the present action was the sufficiency of the pursuer’s interest. The pursuer must be ‘directly affected (AXA v Lord Advocate  UKSC 46, 2012 SC (UKSC) 122). The directness was important as it qualified the extent to which someone had to be affected and distinguished a mere busybody from someone with reasonable concern. There was no need for the pursuer to have a personal interest, but the required interest may vary according to the context of the particular case (Axa, supra, per Lord Reed at paragraphs 169 – 170). The purpose of standing was to maintain the rule of law, and so there could be variety in the standing of particular persons but the touchstone was whether the rule of law required a particular interest to be recognised in the particular case. In the present case, the pursuer does not have standing, as the rule of law does not require that he should. Section 33 of the SA 1998 provides a check in terms of scrutiny by the UK Supreme Court to make sure that the Scottish Parliament stays within legislative competence. Nothing more was needed in order to protect the rule of law. The pursuer must establish some kind of sufficient interest and seeking to campaign or encourage people to vote was not enough. Even if what was sought was advice in order to exercise a right to vote, the present case dealt only in generalities. For completeness, even after a Bill receives Royal Assent, there was a check in the form of judicial review, which allowed the question of whether the Act was within legislative competence to be raised before the courts, as occurred in The rule of law was adequately protected, and so no sufficient interest arose on the part of the pursuer at this stage. Until Royal Assent was granted, the only people with direct concern were the people with functions in the legislative process, namely those who are mentioned in sections 31 and following of the SA 1998.
- Legislative competence was to be determined according to the provisions of the SA 1998. That much was not controversial. Contrary to the line of argument advanced by the pursuer, this did not mean simply determining competence according to the substantive restrictions contained in section 29 and schedules 4 and 5, but also having regard to the procedural means by which those restrictions were raised and determined under section 31 and following. For that reason, the present proceedings were excluded by the SA 1998 scheme. Whilst there was no express exclusion of actions of this kind contained in the SA 1998, there was no question of the taking away of fundamental rights that would require an express provision in order to demonstrate the requisite parliamentary intention. The present action was not in the territory of Wightman (Wightman v Secretary of State for Exiting the European Union  CSIH 62, 2019 SC 111), where the default position of justiciability was said to arise only where the pursuer had a right to have something determined. In the present case, unlike in the quite different case of Miller (R (Miller) v Secretary of State for Exiting the European Union  UKSC 5,  AC 61), there was no enforceable right to have the issue determined. The pursuer was not to be criticised for bringing the present proceedings, nonetheless he did not have an enforceable right and he was not subject to any threat of fundamental rights being taken away from him. The right to bring before the court an application for an advisory declaration in this area could not be described as a fundamental right. Therefore, there was no need for any express provision in this regard in the context of construing common law and statutory rights and considering whether a common law remedy co-exists with a statutory one. Parliament could not have intended otherwise, as this would be a recipe for chaos. The SA 1998 was a carefully crafted scheme identifying who could raise matters of legislative competence, when, and before what court. On the other hand, according to the pursuer, anybody could do so at any time and before any court. If that were the case, there would be no need for the statutory scheme and that is why it would be a recipe for chaos to suggest that this kind of application could coexist with the statutory scheme. The provisions of the SA 1998 were sufficient to secure the rule of law and nothing more was required. The pursuer did not have sufficient interest to pursue the present proceedings.
- The case of Wightman was not determinative of the present case as the circumstances were very different, and what the Court of Justice of the European Union said in that case was of no relevance as it said nothing about Scots law. In any event, Wightman identified limits to the ‘default position’ or general right to a legal ruling, including that the court should not be asked to determine hypothetical or academic matters that would have no practical effect (Wightman, supra, per Lord President Carloway at paragraph 22). This overlaps with questions of title and interest (ibid, paragraphs 24 and 27). The key question was what is the right in the present case? Properly analysed, there was no such right. It was crucial to emphasise that the person who had an interest to bring the case in Wightman was an MP, due to the imminence of an inevitable vote that was to take place in Parliament, and not anybody else (see also Lord Menzies at paragraph 37 and Lord Drummond Young at paragraphs 58 and 59). Proper weight had to be given to the fact that all members of the court in Wightman drew a distinction between MPs on the one hand, and MSPs or MEPs on the other hand as members of different representative bodies. Against that background, it became clear that there was no ‘free for all’ allowing individuals to come to court seeking an advisory declaration, rather there were particular reasons why an individual should or should not have standing. A fortiori, the pursuer was not able to satisfy the kind of close scrutiny of standing that was brought to bear in Wightman, which was tailored to the standing of MPs and the inevitability of a vote to be held by them and did not answer the circumstances of the present case or support the proposition that the pursuer had standing to raise these proceedings.
- There were, of course, limits that arose from the correct application of the law on standing and from the correct understanding of when advisory declarations or declarators were available, namely that they must have practical effect and so on, even having regard to what might be thought of as a ‘generous’ approach adopted in The pursuer’s response had been to rely on other cases in which advisory declarations had been made. Yet, in one such case, Napier v Scottish Ministers  CSIH 16, 2005 SC 307, it was clear that the court had regarded it as being in the public interest to resolve the legal question before it due to the likelihood of the question arising in future cases anticipated to be brought by other prisoners claiming breaches of their rights under article 3 of the European Convention on Human Rights. It was plainly appropriate that the courts should know what the standard of proof was in those cases, but the present case was not in that territory. Likewise, the case of Miller (supra) was an unsatisfactory example as a case raising a real question of whether individual rights under EU law would be affected. The same was true in respect of the case of Crotty v An Taoiseach  IR 713, in which the court was concerned with protection of the claimant’s constitutional rights. That was not the position in the present case, where there was no threat to take away any constitutional or other rights from this pursuer, and so these cases were not apposite to test the law of standing in the present case. These cases reaffirmed the proposition that the court will look closely at the question of standing and will not entertain proceedings that have no practical effect or are premature.
- Section 33 of the SA 1998 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. Democracy could take the form, as ours does, of representative democracy, in which, necessarily, the people did not do everything itself, and neither did individual members of the population.
- The next point to be made was that the declarators sought would have no practical effect. A comparison could be drawn with the position of a person who made a statement in respect of legislative competence on the introduction of a Bill under section 31, or a law officer who exercised powers under section 33, of the SA 1998. Both would do so in respect of a specific Bill, with the context and background known, whereas the present pursuer raised only an abstract provision. Therefore, the action served no practical purpose. Whilst the pursuer had sought to criticise Lord Sewell’s earlier analysis of section 29 of the SA 1998 (under reference to excerpts from Hansard) as jumping to conclusions about the effect of any referendum, this merely underlined the need to apply the statutory test. It was necessary to know the purpose of the Bill in question, and to do so it was necessary to know what the Bill said. Looking at matters through the lens of prematurity or lack of practical effect, the court was not able to discharge its constitutional function until it had a Bill before it and could scrutinise it properly for legislative competence, and it should only do so under the appropriate procedures set out in the SA 1998. The court did not have the ‘clear factual matrix’ that was necessary to determine the legal questions before it (Reference by the Attorney General for Northern Ireland  UKSC 1).
- Section 29(3) of the SA 1998 raised the question of whether a provision of an Act of the Scottish Parliament relates to a reserved matter, which was to be determined having regard to the purpose of the provisions and their effect, amongst other things, in all the circumstances. The court was unable to apply that test because it did not have a provision to consider, and it could not take account of its effect in all the circumstances because it did not know any, let alone all, of those circumstances. Those circumstances included reports and papers produced prior to the introduction of a Bill, the explanatory notes, policy memorandum, and statements by ministers in the Scottish Parliament (Martin v Most  UKSC 64, paragraph 25). That material was not just important but necessary to understand the purpose of the provision in question. Looking at the clear words of the provision alone did not provide an answer. Looking at the context of pre-legislative material was crucial to applying the section 29(3) test. This was a key section when it came to considering legislative competence. The court simply could not exercise its jurisdiction properly as it did not have the material to do so.
- The next broad point to be made was that the pursuer was not ‘directly affected’ in the necessary sense. There was no Bill before the Scottish Parliament and the court could not make any assumptions about whether, when or in what circumstances a Bill relating to a referendum would be introduced. Nobody had stated an intention to introduce a Bill before the next election. The policy of the Scottish Government, so far as it was known, was limited to publishing a draft bill. Nor could the court make any assumptions about the outcome of elections to the Scottish Parliament or, indeed, manifesto pledges that those people seeking election to it may make. According to published material, the policy of the Scottish Government appeared to be that it would wish to seek an order in terms of section 30 of the SA 1998 before proceeding any further in respect of an independence referendum. The pursuer was not a member of the Scottish Parliament. He was asking the court to declare that a body of which he was not a member, had a power which he was not proposing to exercise. This matter was academic, and he was not directly affected by it. Nor was he in that position in relation to voting as there was nothing before the Parliament on which anyone could vote at present. If there were, the pursuer would not be voting. If there were any analogy with Wightman, it would be with the position that pertained before the ‘article 50 notice’ had been given, at which point this would appear to be regarded as purely hypothetical (Wightman, supra, per Lord Drummond Young at paragraph 59).
- There was a common thread to many of the pursuer’s arguments. They assumed that a referendum would be held before knowing whether legislation authorising it would be within legislative competence, but there was no basis for that assumption. The observations that had been made about criminal offences were completely irrelevant, as there was no possibility of committing criminal offences unless the referendum had taken place before it was known whether it was within legislative competence, and there was no basis for thinking that it would. The pursuer also conjured notions of ‘constitutional paralysis’ if the matter of competence were to be determined retroactively, but there was no reason to suspect that a referendum would take place if its legislative competence was doubtful. There was no reason to think that this could ever possibly happen. It was not enough to say that the pursuer was a campaigner who spoke for others who were not necessarily present as pursuers but shared his views. The court could only consider standing and ‘direct effect’ on this pursuer, and for it to be sufficient to say that the pursuer was a campaigner in order to satisfy the test of standing was inconsistent with the approach adopted in Wightman, in which a distinction had been drawn between members of different legislative bodies. In any event, the pursuer knew what he was campaigning for and did not need a declarator in order to do so.
- Whilst it was accepted that the pursuer was also a voter, there were limits on the circumstances in which voters could bring matters before the court and ask for a determination of legality or legislative competence. There were averments about matters that were likely to be at issue in the election campaign, and there was a degree of admittedly educated speculation about the platforms on which parties would run, but this was not known for sure. The key point was that there were limits on when individuals as voters or non-voters could come to court. If rights were going to be interfered with, there was no difficulty. If not, a much more direct connection was required. If the argument was that the pursuer would be voting in an election in which the issue of independence was likely to be raised, that was not direct enough even to satisfy the test in Political debate was for the political forum and the court was not here to assist campaigners by advising them on the legality of particular campaigning issues or to scrutinise manifestos and state whether or not they were correct as a matter of law (see e.g., Vince v Prime Minister  CSOH 77, 2020 SC 78, per Lord President at paragraph 10). The pursuer claimed an enforceable legal and constitutional right to obtain legal certainty on the issue before the court but he had no such right, even allowing for the ‘liberal’ approach in Wightman, as he fell outside of those limits. In any event, the present proceedings would not lead to legal certainty unless the court could examine the Bill. Without a Bill, the court’s opinion on generalities could neither properly apply the statutory scheme nor provide legal certainty and the proceedings would fail to achieve what the pursuer was aiming for.
- The terms of any declarators sought required to be precise and unambiguous. Neither of the declarators sought in the present case met the necessary test. The short point was that legislative competence had to be determined in relation to specific legislative provisions. The first declarator sought was not precise, it was simply descriptive and did not satisfy the necessary level of specificity. The second declarator sought was an impossibility, since the court could not grant a declarator about something it had not seen. That concluded the oral submissions to be made in respect of preliminary pleas. If the court were to dismiss the present action on the grounds of one of the preliminary pleas, however, it should not express any view about the declarators sought. If the court accepted what was said about the statutory scheme or absence of material necessary to apply the test set out there, it would be unable to express a view in any event. If the court accepted any of the other arguments, it should not express a view anyway as this would defeat the purpose of the view sustained.
- Turning briefly to the question of the scope of the Scottish Parliament’s powers, this was a matter that should not be before the court. There was a striking inconsistency of approach in the pursuer’s submission insofar as it was argued that seeking an advisory declaration was a matter of general law untrammelled by the provisions of the SA 1998, yet discussing legislative competence by reference to section 29 and schedules 4 and 5 of the Act. But those provisions were drafted under reference to specific statutory measures and could not be applied in the abstract. The present action was not, in reality, wholly detached from the framework of the SA 1998, as the pursuer was resorting to looking at the substantive provisions on legislative competence. That being so, the pursuer should also respect the procedural framework set out there. All of these sections appear under the heading ‘legislation’ not just in relation to the limits imposed (e.g. section 29) but also the procedures for checking that those limits were respected (e.g. section 31). They were all part of the same section in the SA 1998. The pursuer was seeking to have his cake and eat it too by referring to the provisions that he needed to, while jettisoning the procedural means set out for testing them. That approach was inappropriate. It followed that the task that was being set for the court by the pursuer, to apply specific provisions in relation to the legislative competence of abstract provisions rather than legislative measures, was an impossible one. Section 29(3) simply could not apply to abstract provisions but needed to be applied with the concomitant policy documents and so forth.
- The substance of the issue was whether a referendum would relate to the reserved matters of the Union of the Kingdoms of Scotland and England, or the Parliament of the United Kingdom. It would do both. The secession, not the referendum itself, would end the Union and the Parliament’s power to legislate for Scotland. That is why the referendum would relate to those reserved matters, and the pursuer has not adequately addressed those reasons. So far as the pursuer has addressed them at all, he appears to rely on a parliamentary statement made by the then shadow Lord Advocate, which was clearly not admissible as an aid to interpreting the SA 1998 as it did not satisfy the conditions set down in Pepper v Hart  AC 593. It was permissible to look at statements made by Ministers as possibly explaining the meaning of a provision but a statement by a shadow Lord Advocate did not fall within those bounds. Moreover, it was not intended to make any argument about the franchise for the referendum. Rather, the relevant point was that there was a UK-wide interest in the result of the referendum, which was a ground for construing the intention of the UK Parliament as to reserve the power to hold a referendum to itself.
- The pursuer did not face up to the full test in section 29(3) of the SA 1998 but related only to the effect of legislation when it was said that the holding of a referendum did not itself implement the result. The test required the court to consider the purpose of the provision as well as its effect, and even if it were right that the effect of the legislation would not be to have an effect on reserved matters, the pursuer had failed to address the purpose at all. In any event, the court did not have any material upon which to reach a view on what the effect of the referendum would be. It was artificially narrow to conclude that the purpose of a Bill would be no more than holding a referendum. The purpose of a referendum would relate to the Union, and the purpose of a Bill providing for a referendum would be the same. Nonetheless, the short answer remained that the pursuer had not exhausted the statutory test and it could not be concluded that the Bill did not relate to reserved matters.
- The pursuer’s arguments in relation to schedule 4 of the SA 1998, which prohibited the Scottish Parliament from legislating to modify articles 4 and 6 of the Acts of Union in relation to freedom of trade, also did not answer all that was required, as the pursuer had said nothing about the reservation of the United Kingdom Parliament. More fundamentally, schedule 4 served a different purpose from schedule 5, and it was important that each of those should be interpreted in its own way and given its appropriate weight in order to play its appropriate part in the overall construction and assessment of whether something was within legislative competence. There was no authority supporting the pursuer’s view that the SA 1998 should be interpreted narrowly in order to avoid the apparent conclusion that one of its provisions was otiose. Indeed, there was authority demonstrating that it was not correct (Advocate General’s References on the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill)  UKSC 64, 2019 SC (UKSC) 13, paragraphs 25, 61 and following). The statute simply required to be read as a whole according to the ordinary canons of statutory construction, which showed that the specific reservation of the United Kingdom Parliament in schedule 5 was not ordinarily meant to protect UK Parliament legislation because there was specific and lengthy provision serving that purpose elsewhere in the Act, including schedules 4 and 5.
- The pursuer’s view was also contradictory to the approach otherwise taken by him to the effect that a purposive approach must be taken. If that was so, there was no need also to interpret things narrowly. The pursuer’s approach overlooked the fact that schedules 4 and 5 were intended to achieve different things (Martin v Most, supra, per Lord Rodger at paragraphs 76 – 77). The crucial point was that the Scottish Parliament could not achieve its purposes by enacting a provision beyond its competence as listed in another subsection. In other words, these were cumulative provisions that must be satisfied. The provisions worked in different ways but each had to be satisfied and it was not appropriate to seek to dilute the content of one by reference to another. The application of the legislative competence test was sensitive to the precise words of the legislative provision being considered, and that was why it was of no value to consider abstract provisions. It was necessary to have a legislative measure that could be considered in context, and the statutory tests applied accordingly. In reality, what people needed to know was whether legislation passed was within legislative competence or not. 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.
- Accordingly, the court was invited to dismiss the action.
Submissions on behalf of the Lord Advocate
- There was said to be a great deal of commonality between the positions of the Advocate General and the Lord Advocate, although additional submissions would be made in respect of standing and whether the present action was properly, in effect, an application to the supervisory jurisdiction.
- Lest it be unclear, it was emphasised that the Scottish Government was not a party to the present proceedings, following the withdrawal of defences in mid-August. For the avoidance of doubt, it was stressed that the Lord Advocate was not a member of the Scottish National Party and was not in these proceedings representing or defending the Scottish Government. The pursuer had adopted a false dichotomy between the Lord Advocate’s role as a representative of the Scottish Government or defender of the Scottish Parliament. The Lord Advocate was not obliged to accept the characterisation that others may place on his role in the proceedings as a law officer. Clearly, he had many functions that fell within the collective responsibility of the Scottish Minsters, and the Lord Advocate was, of course, a Minister. However, many functions fell on the Lord Advocate as the holder of that office, including very specific functions listed in the SA 1998, including the power to refer a Bill under section 33. Those functions conferred on the office of Lord Advocate were not expressly termed as independent under statute, unlike the functions in connection with the investigation of deaths and prosecution of crim (SA 1998, section 48(5)). The Lord Advocate’s functions in respect of Bills and scrutiny of Bills fell to him in that office alone and required his independent judgement. Ultimately, the decision whether to refer a Bill to the UK Supreme Court was for the independent judgement of the Lord Advocate holding office from time to time. That may not be expressed in statute, but it was the case, and taken no less seriously by the present office holder. The Lord Advocate made submissions in order to make sure that the law bearing on the SA 1998 and the constitutional structure as he saw it was properly construed. He did so in the public interest and was the proper officer to respond to a challenge although the position to be taken was a matter for his own judgement (Adams v Scottish Ministers 2003 SC 171, per Lord Nimmo Smith at paragraph 31). The Lord Advocate was in this case to explain and ensure the proper application of the procedures in the SA 1998. That was his sole purpose and any suggestion that he was here to do anything else was refuted.
- The points raised by the preliminary pleas were not technical objections. They were pleas not uncommonly taken in the Court of Session and arose in the present case from a real concern of serious impact on policy making and legislative process in the Scottish Parliament where legislators should have peace to discuss matters. The Lord Advocate defended the court’s jurisdiction to state what the law was, but not where specific procedures limited the powers to be tested and how that should take place. In the present case, the key provisions included reference to Chapter 9 of the Standing Orders of the Scottish Parliament, which regulated its own internal procedures. The courts were, in any event, always wary of making advisory declarations.
- Whether Acts of the Scottish Parliament were amenable to judicial review and on what grounds was a matter of great constitutional importance, and what was at issue was the role that the rule of law had to play (Axa, supra, per Lord Hope at paragraph 42). Parliamentarians had many advantages, and judges ought to intervene only in exceptional cases (ibid, paragraph 49). This reminded us that we live in a representative democracy in which the privilege of introducing Bills was given to elected members of parliament. The SA 1998 therefore leaves it to the Scottish Parliament to determine its own policy goals, how its powers are used, and the exercise of those powers (Axa, supra, per Lord Reed at paragraphs 146 and 147). There may be applications to the court for judicial review, or occasionally statutory references of a Bill under section 33 of the SA 1998, but not to date about a draft bill not before parliament or not considered by parliament. Any such judgments would lack any real advisory purpose or use, since the court would lack the text of a Bill and its context and circumstances. The reference of a Bill is handled by the SA 1998 after passage through the Scottish Parliament when the purpose is clear, accompanying documents are available, and even with the benefit of those documents the case of Martin v Most (supra) was decided by a 3 – 2 majority.
- Under reference to the terms of section 28(1) and (2) of the SA 1998, a Bill was the document introduced into the Scottish Parliament by the member in charge of the Bill, and only members could introduce legislation. The member in charge proposed that the Bill so introduced should become an Act of the Scottish Parliament. Scrutiny of Bills was then provided for in section 31(1). The person in charge of the Bill in terms of the standing orders had to state (and it was understood that such statement accompanied the various documents lodged at the same time as the Bill itself) that the Bill would be within the competence of the parliament. The view at that stage was merely that of a member of parliament, no doubt with the opportunity to take advice if he so wished. Nonetheless, it was his view alone that the provisions ‘would be’ within competence, conditional on the basis that the provisions were set up to determine whether ‘Acts’ were or were not within legislative competences. The view given would be about what the Bill would be, if it were in the future, after passage through the parliament, to become an Act. There was no legal requirement for the person in charge of the Bill to give anything other than his or her own view. The same applied to the presiding officer under section 31(2), and also in terms of the standing orders. There was no legal bar to the Scottish Parliament discussing the contents and merits of provisions that might, if passed, be outside legislative competence because the test bites on an Act, and it was only necessary to provide a certificate under section 31. There was a procedure for (non-government) members bills under rule 9.14, but the preliminary procedure did not oblige the member providing the draft Bill beyond the statement to be made upon introduction. Rule 9.14(18) provided that a recommendation could be made that the Bill should not be adopted if it was clearly outwith competence and unlikely to be amended in order to bring it within competence. Nonetheless, parliament was not constrained in what it discussed and could pass resolutions on matters not formally before it on a Bill and which, if it was, would be outwith legislative competence, such as foreign affairs. There was no limit on what the Scottish Parliament was allowed to discuss but the only power the law officers had was when the Bill was passed and the final form definitely known, when parliament had completed its business, when the law officer could consider referring the Bill to the UK Supreme Court for an authoritative statement on legislative competence.
- If the court had advisory jurisdiction, 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. The Scottish Parliament could end up debating that advice in ab ante declarators or advisory declarations rather than focussing on the provisions of Bills themselves. The law officers would be constrained to appear in such proceedings, and the difficulty was that this might end up in a ‘juristocracy’ (an expression coined by the pursuer) where expressions of opinion provided by the court would be prayed in aid and affect parliamentary discussions. It was important for the legislature to be given the space and time that it needed to discuss the matters it wished, and not what the courts have said might or might not be appropriate. Advisory declarations, for the reasons that have already been explained, were impossible tasks and, in constitutional terms, not appropriate. They could not, in any event, provide any definitive advice. Given that members have the privilege of introducing Bills, it was clear that the UK Parliament did not intend to restrict artificially the scope of parliamentary debates or give power to the courts to filter what the Scottish Parliament debated. The first time that a Bill could be submitted to the court for a decision was quite clearly after the Scottish Parliament had had its say. That provided ample protection of the rule of law. Once Royal Assent had been granted, the Act would have force and affect people’s individual rights, and at that stage judicial review proceedings could be brought by anybody with sufficient interest. To allow this at an earlier stage would intrude on the exercise of statutory functions by members in charge of Bills, the presiding officer, law officers and members themselves who vote on measures.
- The basis of the pursuer’s claim was a little uncertain but it was asserted that the pursuer had a constitutional right to obtain legal certainty on this question. But the court could not give such advice precisely because the question was posed in an abstract manner at a time when the institution who has power to legislate has no provision before it. The pursuer’s alleged right did not appear to be focussed in the pleas-in-law, and the difficulty of opening the court to any voter seeking advice on any manifesto commitments were very clear. An example was the Scottish Government’s Programme for Government, which was a programme of legislative intend debated but not voted on by the Scottish Parliament. The court had to be very careful in the context of manifestos, candidates’ promises or future policy commitments.
- Whilst the pursuer relied on the case of Cherry & Others v Advocate General  UKSC 41,  3 WLR 589, that was a judicial review of the lawfulness of a past act and whether it was within the legal limits of prerogative powers. The pursuer’s pleadings referred to the court’s obligation to determine the boundaries of statutory bodies and whether actual or proposed action exceeded those limits, but there was no actual or proposed action specified. The Scottish Parliament was not seised of any specific text that was before this court, so this did not take the pursuer’s case any further. Similarly, in the case of Crotty, the court was satisfied that there was a constitutional right in issue and, ultimately, a challenge to an Act that had been fully passed, unlike the present case where there was effectively no text to work upon.
- The Lord Advocate associated himself fully with the submissions on behalf of the Advocate General in respect of all preliminary pleas, and in particular what was said about The discussions in that case took place in the context of an application to the supervisory jurisdiction of the Court of Session, to be made by petition. The court was not trying to set out the test for standing in an ordinary action, and only an MP had standing in that petition process. There was, of course, the facility in the Rules of the Court of Session to move actions between ordinary actions and judicial review procedure.
- Turning to the points on which the Lord Advocate differed from the case of the Advocate General, it was argued that seeking an advisory declaration from this court on the powers of the Scottish Parliament was properly an application to the supervisory jurisdiction. This was not a technical point of no importance. The Courts Reform (Scotland) Act 2014 had changed the law on applications to the supervisory jurisdiction, introducing a time limit (Court of Session Act 1988, section 27A) and a requirement to obtain permission (1988 Act, section 27B). 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. The procedure and tests laid down by the Scottish Parliament for applications to the supervisory jurisdiction were plainly very different to the tests that applied in ordinary actions by virtue of these changes in the law. The court was being asked in these proceedings to police or delimit the scope of the law-making powers of the Scottish Parliament, which was a matter of the vires of the Scottish Parliament. The supervisory jurisdiction existed precisely because the court exercised that jurisdiction in order to delimit and police the limits of statutory bodies, including the Scottish Parliament. So this was, in truth, a request that the court should delimit the powers of the Scottish Parliament. If the Scottish Parliament had passed a Bill, clearly this would be a judicial review and the question was why the pursuer should ask the court precisely that question, seeking to invoke the supervisory jurisdiction without using the only form of procedure for that to be done.
- Wightman was not a question of asking what the vires of some subordinate body was, and was also a question of European law. In the present case, the pursuer was seeking advice about the limits of the powers of the Scottish Parliament. Whether that was on an advisory basis, or actually engaging with text passed by the Scottish Parliament, it would be odd if there was to be a different test of standing or title and interest according to the stage at which a person brought the challenge. Whether it was brought by reference to an abstract concept or not, it was a question of
- In response to questioning from the Bench, under specific reference to rule 58.15 of the Rules of the Court of Session, it was suggested that it would not have been possible to seek transfer of the proceedings to the correct procedural track at an earlier stage. It had been proposed to be sought in July, but the pursuer opposed that motion and it had been thought more appropriate to consider at debate. At the time the motion had been enrolled, the pleadings were still open, according to senior counsel’s recollection, and it was regarded as appropriate to leave it at that stage. For various reasons, the action should be dismissed on other grounds but it remained an important point due to the tests which had now been placed on the statute book in terms of the 2014 Act. It was correctly observed by the Bench that the Lord Advocate was still asking the court to sustain his 3rd plea-in-law, to dismiss the action on this ground, although the action would equally be disposed of if the pursuer had no sufficient interest.
- A further difficulty was that the court’s decision in terms of rule 58 would not, of itself, cause the action to be dismissed. That would have required the court to sustain a preliminary plea, which could only happen after debate on the Procedure Roll. It was also felt that there had been a risk that it may have been regarded as premature as it would have involved asking the court to consider questions raised by preliminary pleas in the context of what was only a discretionary power in rule 58.15. In light of the grounds of opposition advanced at that stage, the view had been taken that it was not going to be possible to ask the court to determine the case.
- There were different tests under statute for different reasons. The suggestion that by labelling an ordinary action as a ‘public law application’ there was somehow to be read across the test of ‘sufficient interest’ raised questions, including whether this case wasn’t simply a test of the vires of the Scottish Parliament, and these did have procedural consequences. The permission test included the question of sufficient interest. The pursuer did not have sufficient interest, and so did not meet the test whether in an ordinary action or judicial review (see, in particular, Axa (supra), per Lord Hope at paragraph 56 and Lord Reed at paragraphs 159 – 179). This had been the first opportunity for the point to be debated. If it was thought to be inconvenient to deal with it at this stage, then it could be left aside. However, it was felt to be an important point to raise due to the nature of the argument, albeit that it had been raised at a later stage due to the existence of the other preliminary pleas. It was accepted that, in the present context, the point had been reached where the court could give judgment on the action.
- The pursuer had made no relevant averments or pleas bout the right he asked to be vindicated, beyond general averments about democratic constitutionalism. These did not provide any basis for what was sought, standing the existence of the procedures and powers provided for in the SA 1998. The SA 1998 was a ‘carefully calibrated’ settlement and the determination of abstract provisions was contrary to the constitutional settlement of that Act. Pre-emptive advisory declarations were not necessary to the rule of law. The pursuer asserted that this was a question to be clarified before the Bill received Royal Assent, but the SA 1998 itself provided the mechanisms for that to take place, and it did so at the correct time.
- If the court was against the Lord Advocate in respect of the preliminary matters, the fallback position was that it would not be appropriate for the court in the present case, and on the materials that it does not have, to seek to undertake a process that it would normally only be able to do at the end of the passage of a Bill and after Royal Assent.
- The first declarator sought by the pursuer was abstract, premature and ran against the constitutional settlement. The second declarator was simply based on no text at all, and it was appropriate for the court to refuse both declarators at this stage.
Reply on behalf of the pursuer
- With regard to the approach adopted by the defenders in relation to their preliminary pleas, the pursuer argued that this was not consistent with the public law duties of cooperation with the court, which required that public law matters should not be treated in the same manner as ‘hard-fought commercial litigation’ (Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment  UKPC 6, per Lord Walker at paragraph 86). Moreover, whilst the Lord Advocate now claimed to act in the public interest, the fact remained that he was a member of the Scottish Government, albeit that the Scottish Government itself was no longer a party to the proceedings.
- On the question of standing, the case of Vince v Prime Minister (supra), which had been referred to en passant by the Advocate General, had been very much a public law case concerning compliance by the executive with statutory duties, but it had been brought by an individual rather than a parliamentarian and no issues of standing had been raised. Similarly, in the subsequent case of Maugham, Petr  CSOH 80, 2019 SLT 1313, concerning the Northern Ireland protocol to the EU Withdrawal Agreement, there was no challenge on the basis of standing. The same individual had been involved as one of the petitioners in both the Wightman and Cherry cases, despite not being a parliamentarian. There had been a host of cases in which individuals had been able to show that they were not officious bystanders but bringing live and proper questions before the court. The present case fell squarely within those limits, and there was no basis on the facts of this case to say that the pursuer did not have the requisite standing in all the circumstances.
- There was no risk of ‘clogging up’ the courts with matters of election manifestos and people were not rushing to do so because it was incredibly expensive and exposed individuals to personal financial ruin unless the tests for a protective expenses order could be met. If declared bankrupt, parliamentarians would not be able to continue in post. The reality was that public law litigation by individuals was possible only if a PEO or strong public support was in place such as the crowdfunding in the present case. In the present case, where a PEO had been refused, the pursuer was open to potentially extremely high adverse costs awards, potentially in a six-figure sum, having regard to the 4 silks and junior counsel instructed on behalf of the defenders. The present pursuer was not a busybody. He was acting in good faith and at some personal cost and risk to clarify a matter on which he would be required to vote. His standing qua individual voter had not been addressed. This was a matter of constitutional law of particular importance and moment, and even more so now that the Scottish Government had made it an election issue in terms of the Programme for Government that had been referred to. In the case of Reference by the Attorney General for Northern Ireland (supra), it was decided at a preliminary hearing that the questions at issue could be answered in the course of another case that was already forthcoming. That decision did not concern any general proposition that only specific questions would be answered. In any event, Wightman was the governing case where a bare declarator had been pronounced by way of an application in respect of an advisory opinion.
- On the application of Pepper v Hart, it was not permissible to look at extracts from Hansard in isolation, as their significance had to be considered in the context of what was being responded to (R (Spath Holme Ltd) v Secretary of State for the Environment  2 AC 349, per Lord Bingham at 393A). That was precisely what the pursuer had done in the present case, in accordance with Pepper v Hart, to demonstrate the weakness of the defenders’ arguments in reliance upon Lord Sewell’s analysis of the SA 1998.
- It was an extraordinary point that section 63A of the SA 1998 had no relevance in the present case. The Act existed as a unity and was to be understood as it stood, in its entirety, which involved democratic accountability, decisions of the Scottish people and the permanence of institutions. This was all part of the matrix in which the provisions of schedule 5 relied upon by the defenders had to be read and applied. The court was not confined to the misunderstandings of Lord Sewell in 1998.
- The submissions of the Advocate General in relation to ‘ousting’ the common law jurisdiction of the court had thinly skated over the constitutional approach. The common law jurisdiction over the Scottish Parliament, as over any other statutory body, was maintained (Whaley v Watson 2000 SC 340; SA 1998, section 40). Otherwise, an express ouster clause would be expected, which would still be subject to scrutiny and disapplied in accordance with the rule of law (R (Privacy International) v Investigatory Powers Tribunal  UKSC 22,  AC 491, per Lord Carnwath at paragraphs 120 – 121). Any claim of necessary implication was not the same as reasonable implication but had to necessarily follow from the express provisions of a statute construed in context; it was a matter of express language and logic, rather than interpretation (R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax  UKHL 21,  1 AC 563, per Lord Hobhouse at paragraph 45). This had been expressly reaffirmed in R (Black) v Secretary of State for Justice  UKSC 81,  AC 215, subject only to the additional need to consider the purpose of the provisions in question.
- There was no authority for the proposition that statutory powers could only be actioned in court in proceedings brought under that statute. The limitations on those powers were not contained solely in statute, so any such claim was nonsense. Similarly, it was nonsense that the certification of a Bill upon its introduction in terms of the SA 1998 simply represented a subjective and uninformed view on the part of the promoter. Where the promoter of the Bill was a Scottish Minister, it was a matter of collective responsibility and so it was also the view of the Scottish Government, including the Lord Advocate who was bound by ministerial responsibilities in that context. It could not be said that the Lord Advocate was not involved until the Bill had been passed, and it was disingenuous and unconstitutional to suggest that a subjective reading of section 31 of the SA 1998 applied before that stage. It was central to the Scottish Parliament’s legislative activity to know whether it was acting within its legislative competence, and that was the purpose of section 31. The Lord Advocate was entitled to participate in the parliamentary proceedings and was involved in the business of debating and potentially legislating on matters (SA 1998, section 27). Whilst the Lord Advocate could decline to answer questions in relation to criminal prosecutions, it was equally clear that the Scottish Parliament could put questions to him and he was obliged to answer them, which could include questions on legislative competence. A subjective reading of section 31 of the SA 1998 that suggested the promotion of Bills was nothing to do with the Lord Advocate would amount to a denial of the duties of his office and the court could not allow it.
- With regard to the point taken by the Lord Advocate regarding the form of proceedings, this was precisely the sort of ‘litigation tactics’ that did not serve the public interest that was said to be represented in the present case. It sought to turn the litigation into ‘a game of snakes and ladders’, an approach that was to be deprecated (Donaghy v Rollo 1964 SC 278). Rule 58.15 had been introduced in response to these kinds of claim, in order that proceedings could be transferred and the issue avoided. It was clear from the terms of the rule that the matter could be raised at any time, and good case management and proper use of the process demanded that it should be raised at the earliest stage. In the present case, the plea had been added by amendment at a very late stage.
- There had been no straight answer to the court’s questioning as to the difference been standing in this action or a judicial review. Rule 58.15(2) required that the particular act or decision under review had to be stated, and if there was no act to be reviewed, then it was a matter for common law declarator according to the analysis in In the present case, the pursuer had called upon the Lord Advocate ‘in compliance with their duty of candour, to specify what and whose “decision” the vires of which, they say, should properly be challenged by way of an application to the supervisory jurisdiction of this Court’. That call had not been answered. Instead, the Lord Advocate had averred that ‘these proceedings raise an issue of vires which should properly proceed by way of an application to the supervisory jurisdiction of this Court’ and that ‘[t]he summons does not identify any live issue of right affecting the pursuer upon which the court can or should adjudicate. Rather, it seeks a ruling as to whether a hypothetical Bill would be within the legislative competence of the Scottish Parliament. The absence of any decision that is the subject of challenge is an indicator of this action’s incompetency’. This amounted to saying that this action was incompetently proceeding as an ordinary action, and should instead proceed as an incompetent judicial review. It was pointless for the preliminary plea to be maintained in those circumstances.
- As had been pointed out from the Bench, the requirements of standing for the purposes of a PEO were the same as those applied in the context of judicial review on the basis of the reliance placed in Wightman on the decision in Caroll v Scottish Borders Council  CSIH 73, 2016 SC 377. The same test of ‘real prospects of success’ applied, and that test had already been passed in the present case, at least according to Lady Poole in the context of her refusal to grant a PEO ( CSOH 75). This was contrary to the 7th plea-in-law maintained for the Lord Advocate, which was to the effect that no order should be made in terms of rule 58.15 on the basis, inter alia, that the application would have no real prospect of success.
- There was no requirement to allege a breach of fundamental individual rights in cases that sought to protect the constitution (Cherry, supra, per Lord President Carloway at paragraph 59, and Lord Drummond Young at paragraph 125). In any event, the argument being made against the pursuer was the removal of the default right of access to the courts by ordinary citizens by implication of the structure of the SA 1998. That was a question of fundamental right (R (UNISON) v Lord Chancellor  UKSC 51,  AC 869). The pursuer was seeking clarification in order to best exercise the right to vote in a properly informed and constitutional way. Neither the Advocate General or the Lord Advocate had dealt with the right of voters to be properly informed as a matter of the proper participation of the individual voter in our democratic polity.
- In any event, it made no sense to suggest that, if the Scottish Parliament were to be told what its powers were, it might stop them talking about it. It was entirely within the province of the courts to clarify the law, following which it would be a matter for parliamentarians how to deal with being so informed. To do so did not interfere with parliamentary functions. Rather, those representatives had to know what powers they had in order to govern according to the rule of law. It could not be a proper submission by any law officer, whose primary function must be to assist the court in upholding the rule of law, that voters and parliamentary representatives ought to proceed in legal ignorance.
- The pursuer did not dispute the sovereignty of parliament, simply the Diceyan notion that sovereignty meant absolute power. Absolutism was the antithesis of democracy and was wholly contrary to the Scottish constitutional tradition (MacCormick v Lord Advocate 1953 SC 396, per Lord Cooper; R (Jackson) v Attorney General  UKHL 56,  1 AC 262, per Lord Hope at pages 303 – 304; Axa, supra, per Lord Hope at paragraph 50).
- Finally, the suggestion that a representative democracy required individuals to vote for elected representatives in ignorance of the powers being voted for, for those representatives to pass legislation also in ignorance of those powers, and only then to ascertain the scope of legislative competence, was not a democratic vision. No notions of caution on the part of the court could properly be prayed in aid to bolster that position.
- The pursuer was not asking the court to throw caution to the wind, simply to perform its constitutional and democratic duty to advise the electorate on a real and important issue at this time, in order to inform the fundamental right to vote. The demos had to know whether they were voting for a government that could hold a referendum on its constitutional future, and the court had a duty to provide the answer. Against that background, the pursuer renewed his motions.
Reply on behalf of the Advocate General
- In response to the pursuer’s submissions in respect of R (Morgan Grenfell & Co Ltd) (supra), which had not been introduced previously, it was argued that the pursuer had outlined the correct test in respect of fundamental rights but not for the wider class of rights not engaging fundamental human rights (R (Child Poverty Action Group) v Secretary of State for Work and Pensions  2 AC 15).
- Similarly, in response to the pursuer’s submissions in respect of R (Spath Holme Ltd) (supra), not previously referred to, this case did not qualify Pepper v Hart but rather insisted on it. It was accepted that it was important to take matters in context, but the pursuer had simply cited those matters that were convenient for his argument.
- The court made avizandum. Lady Carmichael will endeavour to write ‘very swiftly’ on the case.
Day One: The following is a summary of the oral submissions that were presented at the Hearing before Lady Carmichael in the Outer House of the Court of Session on Thursday 21 January 2021, prepared by a Reporter for Session Cases who was in attendance.
- The pursuer seeks the following substantive orders from the court:
- “a declarator 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
- “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.”
- The court heard arguments on behalf of the pursuer presented by Aidan O’Neill QC (appearing with David Welsh, Advocate), and arguments presented on behalf of the Advocate General by David Johnston QC (appearing with Andrew Webster QC, and Chris Pirie, Advocate). James Mure QC and Christine O’Neill QC (solicitor-advocate) also appeared on behalf of the Lord Advocate.
- A preliminary discussion took place as to the significance of earlier procedure concerning attempted recovery of documents by the pursuer. Lady Carmichael indicated that a detailed procedural history including both previous decisions on this matter, would be included in the substantive judgment to be issued in the case. Her Ladyship further indicated an intention to seek to provide her judgment ‘within days rather than weeks’.
- After a brief adjournment to clarify the timetable to be followed by the parties during the hearing, the following oral arguments were advanced.
Submissions on behalf of the pursuer
- The pursuer’s primary motion was for the court to grant decree de plano on the basis that the defenders’ averments in answers were irrelevant and there were no matters arising that required to be sent to proof. In particular, it was argued that the second declarator remained ‘live’ notwithstanding refusal of commission and diligence seeking recovery of the proposed Act of the Scottish Parliament referred to. If the court considered that the precise terms of the proposed Act required to be known, that ought to be a matter for further procedure in order to secure its production. In any event, if successful, the pursuer intended to seek recovery of his expenses on an enhanced scale (‘agent and client, as if client paying’) on the basis that the proceedings have been brought in the public interest.
- According to the pursuer, the Advocate General’s substantive defence was that an Act of the Scottish Parliament that provided for a referendum on Scottish independence would be outside legislative competence because it would relate to the reserved matters of (a) the Union of the Kingdoms of Scotland and England; and (b) the Parliament of the United Kingdom (in terms of s. 29 of the Scotland Act 1998). No substantive defence had been put forward by the Lord Advocate, apparently on the basis that it would depend upon the precise terms of the legislation in question. The pursuer argues that it would not be outside competence as it would not relate to those reserved matters.
- A number of preliminary pleas had been advanced by the defenders but those could only be upheld on the basis that the case of Wightman v Secretary of State for Exiting the European Union  CSIH 62, 2019 SC 111) was wrongly decided. The court was not permitted to depart from the principles set out in that case, despite the differing underlying facts, and the preliminary arguments advanced in the present case had all been rejected in Wightman. In particular, in Wightman, Lord President Carloway had affirmed the competence of raising issues of public law in ordinary actions (rather than by way of petition for judicial review in terms of the court’s supervisory jurisdiction). As a matter of public law, there was a higher duty of candour upon public authorities than would normally be expected of litigants before the court to set out exactly what their position was in response to litigation raised against them (see eg Cherry & Others v Advocate General  UKSC 41,  3 WLR 589, in which the court looked highly critically at the documents produced by the government). According to the pursuer, the approach adopted by the Lord Advocate did not comply with that duty in the present case and was not explained by an assertion of acting in the public interest. It could not be in the public interest for the public to be kept in ignorance on the present issue of constitutional law as to whether the Scottish Government is able to ‘make good’ its claim in respect of proposed legislation for an independence referendum. If anyone was acting in the public interest, it was the pursuer who was acting in the interest of voters (backed by crowdfunding support of around 10,000 other ordinary voters) in a forthcoming democratic election to know whether the Scottish Parliament does or does not have the powers claimed for it by the Scottish Government. The pursuer was not a mere busybody seeking an answer to an academic point, as the answer was required in order to inform the votes of ordinary citizens in a forthcoming election. As in the case of Cherry, the exercise of a democratic right to vote conferred standing.
- The pursuer advanced arguments in respect of the broad notion that the constitution had a fundamentally democratic basis and, at least in Scotland, any traditional notion of a ‘Diceyan’ constitution had been rejected. This approach informed the whole understanding of the Scotland Act 1998 (‘SA 1998’). It was notable that Dicey was not mentioned once by the UK Supreme Court in Cherry, the leading constitutional case; Dicey was irrelevant. The constitution has never been fixed, and it was relevant to bear in mind that the country was less than a century old from a constitutional perspective, the present United Kingdom of Great Britain and Northern Ireland having been created in 1921. The history of constitutional legislation showed a gradual extension of the right of individuals to vote over some 300 years. Thus, the arc of the constitution bends towards democracy. Most recently, the devolved administrations in Scotland and Wales had similarly extended the franchise in response to the consequences of Brexit (see the Scottish Elections (Franchise and Representation) (Scotland) Act 2020). The constitution was informed by the ideals of full democratic participation by ordinary individuals to whom parliaments and governments were accountable, and the purpose of the courts was to support the achievement of these ideals. The approach adopted by the defenders in the present case ought to be repelled by the court according to its constitutional duty as guardian of the principles of democracy. Democracy meant that the people may cede powers to others, but never irrevocably, selected for the good order of society, and what distinguished democracy from any form of tyranny or despotism was that a polity in which those duly permitted by the people to govern and to legislate remained accountable to the people. This idea of power conditionally and never irrevocably ceded by the people, and with accountability to the people, had deep roots within the Scottish constitutional tradition, and was now reflected in the terms of the SA 1998. Power was held on trust, never as of right, and was always limited. This was a fundamental aspect of the Scottish constitution that was preserved by the 1707 Union and could not be altered by the Union Parliament. What was important was that democracy values each individual voter and member of society, rather than any notion of subordination to government or need to stand in the shoes of parliamentarians in order to maintain the values of constitutional democracy (see eg Ghaidan v Godin Mendoza  UKHL 30,  2 AC 557, Baroness Hale at para 132). The unanimous decision of the UK Supreme Court in Cherry was the culmination of this analysis of democratic principles, importantly from the Scottish perspective, and their enforceability by the courts.
- The fact that the principles of democracy must be considered by the courts, as against what governments might say, was affirmed by in Moohan v Lord Advocate  UKSC 67, 2015 SC (UKSC) 1 (per Lord Hodge at paragraph 35). Contrary to Dicey, the courts are cognisant of the will of the people and principles of democracy, contrary to what any Act of Parliament might say, and Acts of Parliament must be construed in conformity with the principles of democratic accountability. That is how the courts have legitimacy, unelected but as guardians of the fundamentally democratic nature of the constitution, and policing the limits of power to ensure that it is used only for the purposes for which it was ceded to the government and to the legislature. It was the duty of the courts to enforce those principles against the government and, if need be, the legislature.
- The devolution statutes had modified the UK constitution as a whole, and were not be ‘hived off’ as something on the constitutional fringes, so the constitution had to be read in a manner which integrated the SA 1998, and the SA 1998 itself had to be read in a manner compatible with the democratic values already outlined. The notion of the sovereignty of the people was clearly maintained. Section 63A of the SA 1998 tells us that the ‘demos’ is the people of Scotland, and is of pivotal significance to any understanding of the powers of the Scottish Parliament. It had not yet been the subject of any detailed examination or decision, but impacted upon other aspects of our understanding of the SA 1998, in particular the specific reservations. It was important that s. 63A concerned the ‘permanence’ of the Scottish Parliament and Scottish Government, fixing the constitutional structure in place in a way that Dicey would say was impossible, subject to abolition only in the terms specifically allowed. This was an example of Parliament bearing to bind its successors, which was possible in the case of constitutional statutes. This was the short of language that was to be expected of any constitution, expressing the ‘commitment’ of the UK Government and Parliament to the Scottish Government and Parliament, contrary to the nonsensical notion that an absolutely sovereign Parliament cannot bind its successors. The statement of commitment was not conditional in any sense. Moreover, it was undoubtedly a matter of constitutional principle that Parliament does not legislate in idly or in vain, and so these statutory provisions are intended to have meaning and practical consequences. They were a repudiation of the Diceyan approach, and affirmative, in a Union statute, of Scottish constitutional principles, which allow for no absolute power in parliaments or governments but only conditional powers ceded to carry out the purposes for which they were ceded by the people. Section 63A could only be given meaning if the Diceyan approach was recognised as no longer accurate or determinative of the present constitutional position. Section 63A(3), in particular, stated unequivocally (cf SA 1998, s 28(8): ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’) that the Scottish Parliament and Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum. It could not be said on any proper reading that this statement of purpose cannot be given proper legal effect. The words were habile and intended to be effective and have wider implications for the broader community. Against the background of ‘commitment’, the Union Parliament makes a declaration of law, using a relatively common statutory formulation (it is declared that…’), which does not preclude legal obligation and is not merely aspirational, that the subordination of what the UK Government can do in relation to the UK constitution, the Scottish Parliament and the Scottish Government, cannot be abolished except by decision of people of Scotland voting in referendum. This encapsulates the ‘bottom up’ approach of allowance and creation of norms by the demos, the people of Scotland, by vote, in a referendum, that will have legal consequences regarding the abolition or not of the Scottish Parliament and Scottish Government under the present constitutional settlement.
- The abolition of the Scottish Parliament and Scottish Government as currently constituted could arise in two ways: by referendum simply for abolition, so as to restore a unitary state; or by independence of Scotland from the United Kingdom, which would itself involve the abolition of devolved institutions, as envisaged by s. 63A(3) of the SA 1998 can and will be done on the basis of the people of Scotland voting in a referendum. This was recognition, in a constitutional statute governing how Scotland is governed, of the people of Scotland being able to change those methods of governance. In this context, demos was not a claim to ethnicity, nor a racial or cultural construct or myth of common descent. Demos was constituted by those recognised in law as a particular political community having the right to vote in elections in either the referendum or relevant representative assembly. It was a wide construct, but easily identifiable. The question then arising was the impact on whether or not the Scottish Parliament had authority to hold another referendum on independence.
- Although the Scottish Parliament was undoubtedly established by the UK Parliament, as a body to which powers were delegated or devolved, that did not mean that the Scottish Parliament owed its legitimacy to UK Parliament. It gained legitimacy as a matter of democratic theory and practice on the basis that it was directly voted for and democratically accountable and answerable to the people of Scotland. That which gives its legitimacy as matter of democratic theory and practice (see eg AXA v Lord Advocate  UKSC 46, 2012 SC (UKSC) 122, per Lord Hope at paragraph 49). The presumption was that it acted within the limits of the powers ceded to it by the people, and therefore within the legitimate scope of its authority. It had always to act compatibly with the underlying democratic principles which have given it life, including common law limitations of respect for the rule of law and equality of treatment, beyond which the Scottish Parliament cannot legitimately and lawfully act. The accountability of the Scottish Parliament was not confined to periodic elections, but also referendums on particular issues, as one of the measures required to ensure the continued democratic accountability and legitimacy of the legislature within the polity. Thus, it has been given the power to hold referendums of the people of Scotland, and has legislated accordingly (Referendums (Scotland) Act 2020).
- The central point in the present case is the extent to which the general power to hold referendums has in fact been limited in terms of section 29 of the SA 1998. Section 29(2) says that it will be outside competence if it relates to reserved matters, and section 29(3) provides that this is determined by reference to the purpose of the provision, having regard among other things to its effect. It is not argued on behalf of the UK Government that any independence referendum would be in breach of any of restrictions set out in schedule 4 to the SA 1998, including the restrictions on modification of articles 4 and 6 of the Acts of Union. Indeed, it may be significant that, according to the basic principle expressio unis, exlusio alterius, the Acts of Union may otherwise be the subject of modification, and the reservations otherwise relied upon by the UK Government, namely those provided in schedule 5 of the SA 1998, had to be read against that background. The general reservations relied upon could not be read as if they were broad and unlimited in their scope (Martin v Most  UKSC 64, paragraphs 25 and 51). The issue of whether or not the calling of an independence reference would be prevented also arose during parliamentary debates in relation to the Scotland Bill in 1998, in the course of which Lord Mackay of Drumadoon had correctly stated that it would be ‘perfectly possible to construct a respectable legal argument’ that it was within the legislative competence of the Scottish parliament to legislate for the holding of a referendum on independence, in order to be aware of the thinking of Scottish people on the issue. That was the issue now before the court for determination. Lord Mackay had supported an amendment in order to put the matter beyond doubt, otherwise ‘the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on’ as it does now.
- It could not be presumed that a referendum would be won and that independence would necessarily be the result. The experience of Brexit had shown that at most it might open up tortured and tortuous negotiation upon the issues, and it did not mean that any decision might not be reversed before it came into effect. There was no inevitable causation between holding a referendum and independence and esto it was not within the powers of the Scottish Parliament to unilaterally declare independence, it did not mean that it was not legitimate to take action to encourage participation and discussion and indeed voting on issues of the future governance of Scotland.
- The construction of section 29 of the SA 1998 must be ‘suitably restrained’ (Martin v Most, supra, per Lord Kerr at paragraph 159; see also Imperial Tobacco v Lord Advocate  UKSC 61, 2913 SC (UKSC) 153) and applying a strict approach meant that there was no argument to say that a potential independence referendum in and of itself related to a reserved matter (Advocate General’s References on the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill)  UKSC 64, 2019 SC (UKSC) 13, paragraphs 62 – 64). There was a perfectly coherent case to be made that the purpose of an independence referendum was to consult the people of Scotland on the possibility of future constitutional change in the United Kingdom, noting also that the fact of Brexit had arguably resulted in the fundamental diminution of the rights available to members of the Scottish demos, including EU citizens resident in Scotland. Whereas a unilateral declaration of independence would be a breach of the constitutional order, such a referendum was about what future constitutional change might be effected constitutionally and did not involve any claim of competence or intention to dissolve the Union. This was undoubtedly an issue that could be determined in the present action, and the case of Wightman was directly in point in that regard. The court was required to answer a question of pure law with a view to allowing that answer to inform the views of those persons being required in the exercise of their constitutional function to exercise their right to vote. This court would not be advising the Scottish Parliament or UK Parliament on what it must or must not do, nor seeking to influence the direction of travel. It would simply be declaring the law, which is its central function. How the governments sought to react to that was a matter of democratic accountability for them.
- As the Brexit litigations had shown, big constitutional issues can properly be brought by ordinary citizens and this case was an example of that. Moreover, whilst supportive affidavits from parliamentarians had been lodged in the present case, the refusal of a protective expenses order ( CSOH 75) had rendered the recovery of adverse costs by the government too great a risk for democratic representatives to bear. The issue of standing of individuals to bring proceedings seeking to vindicate constitutional rights was very closely linked, and spurious attempts to attack standing were of no credit to the government, and unsustainable as a matter of law. For the avoidance of doubt, the crowdfunding monies in the present case were paid directly to the solicitor to be held in trust for the purposes raised, whether the specific litigation or other purpose to which contributors have consented, or otherwise refunded pro rata. It was not a necessary factor, but the pursuer had a history of active political involvement as convenor of ‘Forward as One’, a grassroots campaigning group, and he continues to campaign politically and to be involved with other known SNP affiliated independence groups. Such political engagement was to be encouraged, and the pursuer had a right to legal certainty on the active dispute before the court. Any suggestion that he does not have standing should be roundly and completely rejected.
- It was another spurious point taken against the pursuer that the second declarator sought was unduly vague, and in any event, the wording was a matter for the court. Previous statutory language as to the referendum on independence had been straightforward and sufficiently clear for the conditions of the referendum to be ascertained. Any political questions as to whether the Scottish Parliament should have the power to legislate were irrelevant. The question before the court was a simple one of law, and was not academic in the public law context (Wightman, per Lord Drummond Young at paragraphs 48 – 50 and 55; Whaley v Watson 2000 SC 340), particularly having regard to other cases in which the government had sought to continue with the proceedings despite an intervening lack of practical consequences except in relation to future cases (Napier v Scottish Ministers  CSIH 16, 2005 SC 307; Davidson v Scottish Ministers  UKHL 74, 2006 SC (HL) 41). Nor was there any question of encroachment on the separation of powers where the court was simply setting out the law.
- The SA 1998 did not provide a complete system for what the Scottish Parliament can or cannot do (Axa v Lord Advocate, supra), and questions of legislative competence were not exclusively for those persons identified in the Act, as a matter of democratic principle. Any individual citizen had a right and standing to take issues upon which for his or her own political reasons required to be known in order to properly exercise the right to vote. In a vacuum caused by inaction, there cannot be exclusion of voter rights to come to court, rather that is precisely how those rights are asserted (see eg Crotty v An Taoiseach  IR 713; Walton v Scottish Ministers  UKSC 44, 2013 SC (UKSC) 67). In effect, this allows for ‘citizen defenders’ of the constitution, such as Gina Miller, and now the present pursuer, and any suggestion to the contrary ought to be rejected by the court on those basic constitutional grounds. There were no alternative remedies in which individual citizens have the opportunity or right to participate, merely intergovernmental or institutional ones.
- The present action was not premature on the basis that, whilst it is trite that the text of the proposed Bill may be subject to amendment, this ignores the fact that the Bill could not be introduced unless it was claimed to be within competence. If it were not thought to be competent, it would not be a Bill at all, merely a proposal for political change to the constitution. Regardless, it is said that a proposed Bill is to be published. It was not a hypothetical issue having been made a ‘live’ issue in connection with the forthcoming election. Moreover, it was essential for campaigners to understand the extent of potential criminal liability in connection with offences applicable to referendums in terms of the Referendums (Scotland) Act 2020.
- The argument that the present case ought to have been raised as a petition for judicial review, and should in any event be refused as lacking prospects of success, was pointless. The argument had previously been abandoned and therefore it arguably amounted to an abuse of process to seek to reinstate it. Moreover, it assumed that the Lord President’s approach on the procedural question in Wightman was either obiter or wrong. And further, the low hurdle of reasonable prospects had already been overcome in the present case in the context of the court’s judgement on protective expenses ( CSOH 75).
Submissions on behalf of the Advocate General
- The Advocate General invited the court to dismiss the action. The fundamental point underlying the preliminary pleas advanced was the need to have regard to the SA 1998 and the established procedural mechanism for deciding whether legislation made by the Scottish Parliament was within its power. The problem with the present action was that it was in flagrant conflict with the statutory procedure.
- Put shortly, the action had been brought when there was no Act of the Scottish Parliament on whose legality the court could rule, by a person who does not have standing to invoke the statutory procedure, and it had been brought in the wrong court as the court that has jurisdiction before an Act of the Scottish Parliament is enacted is United Kingdom Supreme Court.
- It was entirely appropriate that the majority of the defenders’ arguments concerned preliminary pleas, as there was no need for the court to consider the pursuer’s contentions about legislative competence. It was manifest that he failed on one or more of the preliminary grounds. Furthermore, it would be inappropriate for the court to express any views about those legislative competence provisions, as the matter ought not to have been brought before the court in the first place.
- In response to some of the arguments presented on behalf of the pursuer, it was submitted that the UK Supreme Court had in no sense abandoned the notion of parliamentary sovereignty as a fundamental principle of the UK constitution (R (Miller) v Secretary of State for Exiting the European Union  UKSC 5,  AC 61, paragraph 43; Cherry & Others v Advocate General  CSIH 49, 2020 SC 37, paragraphs 41 and 44). The fundamental notion was alive and well, and part of the basis on which Cherry had been decided. In order to protect parliamentary sovereignty, the prerogative power to prorogue Parliament could not be unlimited.
- Whilst wholeheartedly subscribing to the importance of democratic values and the need for them to be upheld and protected, the missing factor was recognition that a representative democracy meant that not every decision was taken by the electorate. Rather, their representatives take decisions within the scope of their powers and, of course, those powers are revocable as they are elected for a term and not longer. There was nothing inconsistent with democracy about MPs and Ministers representing people, as this is the form of democracy that we have chosen.
- Section 63A of the SA 1998 referred to the Scottish Parliament as a permanent part of constitution but this provision was not really of any assistance to the court. It specified the circumstances in which there must be a referendum, if those institutions were to be abolished, but otherwise did not say anything about whether the referendum would be within the legislative competence of the Scottish Parliament. Secondly, the provision was a late addition to the SA 1998, added by the Scotland Act 2016, and so it was not clearly of assistance when trying to understand the legislative competence provisions in the SA 1998 as introduced as a whole.
- With regard to the preliminary pleas, the general submission was that the present action raised an abstract question of law on which pursuer would like to have the court’s opinion. The court should decline that invitation. The simple point was that the court is not under any obligation to answer every public law question asked Miller; Wightman). The court will provide an answer where there is a right to have a question of law decided, but it was not completely open season to ask the court questions. There were limits. The task for the court was to decide where those limits lie.
- There were compelling reasons why the court should decline to answer the questions posed by the pursuer in the present case. First, there was a statutory scheme, which allowed one to work out before Royal Assent whether the provisions of an Act of the Scottish Parliament would be within legislative competence. In short, that is the scheme that should be deployed, and it is not the scheme that the pursuer seeks to invoke. Secondly, the court does not have the material that it needs to answer the question. Thirdly, the pursuer is not ‘directly affected’ by the propositions that he asks the court to declare (Axa). And finally, the declarators sought fail to meet the applicable standards of precision.
- The statutory scheme prevents the court from ruling on legislative competence in the present action. This showed that the pursuer lacked standing, and made the action unnecessary, academic or premature. All of those points essentially flowed together. The nature of the jurisdiction that the court was being asked to exercise appeared to be an attempt to seek an advisory declaration on the law as a freestanding application rather than resort to the supervisory jurisdiction by judicial review. The question of standing depended on sufficient interest, and fundamentally depended on protection of the rule of law. The statutory scheme was designed to test the competency of a Bill, to answer the requirements of rule of law, and to ensure that legislation did not get through which exceeded the powers of the Scottish Parliament. Therefore, the scheme came to be relevant in relation to standing.
- To put it another way, the advisory declaration sought was not claimed to form part of the statutory scheme. Yet in the summons, what is actually being addressed is whether or not there is legislative competence, looking to the provisions of the SA 1998 which are there precisely to set the legislative competence of specific measures. Thus, the pursuer seeks to rely on the substantive provisions of the SA 1998, yet ignoring the ‘procedural’ provisions within the same sections by which legislative is to be tested. Whilst there is no express exclusion, it is clear that these provisions are intended to work together and provide the procedures by which the legislative competence is to be exhaustively determined.
- For the court to make the ruling sought would be contrary to the will of Parliament, as set out in the SA 1998. The scheme set out in sections 31 – 34 and 36 was set out in detail, carefully, and indicated a clear intention that this was to be the exclusive means of examining legislative competence. On the pursuer’s approach, the court would be left with a series of possibilities in relation to any hypothetical Bill. There could be Court of Session litigation on questions that Parliament had decided should be answered by the UK Supreme Court. There was also the possibility of multiple litigation on the same Bill if it proceeded outside the statutory scheme, and so the possibility of different decisions being made by different courts. There was also the possibility of disrupting the proper progress of Bills, without the court having proper information upon which to do so. This amounted to a series of unfortunate events that could follow by allowing the sort of application that the pursuer was making here. As could be seen from the case of Wightman, one decision could set a precedent, and so the court had to be aware of the importance of keeping the jurisdiction within workable limits.
- The cases of Axa and Whaley did not support the propositions that were apparently intended by the pursuer. Those cases confirmed that the Scottish Parliament, like any other body created by statute, was subject to the jurisdiction of the courts, but was not authority for any freestanding jurisdiction for individuals such as this pursuer to raise issues of legislative competence outside of the procedures set down in the SA 1998. The whole context was the function of the courts to ensure that a public authority did not exceed its power but it did not say anything about the powers of someone else such as the present pursuer (see Whaley, supra, page 348G-H; Axa, supra, per Lord Reed at paragraphs 142 and 153). The present case does not deal with a situation where the Scottish Parliament has done anything whose legality must be controlled by the court, and neither do these cases say anything about the remedies of individuals such as pursuer who are not challenging anything done by Scottish Parliament (see also Moohan, supra, per Lord Hodge at paragraph 35).
- Even if it were wrong to say that the statutory scheme was exclusive, in light of the existence of that scheme and the utility of having matters proceed in an orderly way in terms of the SA 1998, the court should, in its discretion, refuse to permit this remedy on the basis that it would trespass on other public law jurisdictions. Furthermore, the separation of powers required the court to be very clear and cautious in exercising its role in matters very close to Parliament, and that may come before the Parliament. The risk of encroaching on parliamentary matters called for circumspection (R (Wheeler) v Prime Minister  EWHC 936 (Admin)).
- At this point, the court adjourned for the day.
- The arguments on behalf of the Advocate General will resume tomorrow, Fri 22 January, followed by the arguments on behalf of the Lord Advocate.