Feb 5, 2021
In the action, Martin Keatings asked the court to rule that the Scottish Parliament had the power to pass legislation for an independence referendum to be held without requiring the consent of the UK Government.
During a two day hearing, the Advocate General for Scotland and the Lord Advocate (defenders) argued that the action was hypothetical, premature, and constitutionally wrong.
It was academic, they said, because the declarators sought would have no practical effect. No Scottish independence referendum bill had been introduced or passed. It was not possible to decide without knowing the precise terms of legislation whether or not the Parliament had power to pass it. The only people who could, as a matter of law, ask a court about whether Parliament had power to pass a law before it received Royal Assent were the Lord Advocate, the Advocate General, and the Attorney General. This was because of the provisions of section 33 of the Scotland Act, which allowed them to make a reference to the Supreme Court. If the court granted the orders sought, it would be interfering with the proceedings of Parliament, and that would be unconstitutional.
The defenders argued that Mr Keatings did not have the “standing” (a sufficient interest in the matters raised in the action) to seek the order. The case was different from an earlier case, Wightman, in which the court had been asked to grant a declarator clarifying what the law was. The petitioners in that case had been MPs asking for clarity about the law relevant to an issue on which they were to vote in Parliament.
On his part, Mr Keatings argued that, as a campaigner and voter in the forthcoming election, he had a sufficient interest to give him “standing” in the case; and that the question was not premature or hypothetical, but real. There was a dispute as to whether the Scottish Parliament had power to legislate for a referendum on Scottish independence, and people had a right to know the correct position in law in order to determine how to campaign and vote. Mr Keatings was entitled to seek an answer to the specific legal question of whether the route that was being proposed by many of those in favour of Scottish independence was a legally viable one. It was inappropriate in a modern democratic society to require people to cast their votes where there was a “known and wholly fundamental legal ambiguity” in relation to an issue that he said “would be the central issue of the upcoming elections to the Scottish Parliament”. He argued that the action did not interfere with the actions of the Scottish Government or the Scottish Parliament, and that if the court granted the orders, it would not compel them to act in any particular way.
In a written judgment issued today, Lady Carmichael dismissed the action. She ruled that Mr Keatings’ arguments had been hypothetical and premature, and that he did not have standing to bring the case. She stated that the consideration by a court of proposed legislation would normally be hypothetical and premature at any point before it was in its final form and passed by Parliament. Until passed, bills could fall or be amended.
Lady Carmichael took from the judgment in the case of Wightman that a person may apply to the court to determine what the law was in a given situation. The court might require to make such a determination in order to fulfil its function in protecting the rule of law. However the court would not entertain hypothetical, premature or academic questions, or cases where the pursuer or petitioner did not have standing to bring them. Lady Carmichael stated that in considering whether a matter was hypothetical, or a person had standing to bring a case, the court had to consider whether a ruling as to the existing law was necessary to preserve the rule of law in a democratic society. The Wightman case had involved MPs seeking advice that they said they needed in order to vote in a Parliamentary matter (Brexit). Their votes directly determined a single matter of importance to every citizen of the United Kingdom.
Mr Keatings’ case did not demonstrate a need for a determination in order for the court exercise its function of preserving the rule of law. The ability to campaign politically, or lobby, or to vote in the elections to the Scottish Parliament did not depend on information as to whether or not the Scottish Parliament had power to legislate for a referendum on Scottish independence.
The court also heard arguments about whether the Scottish Parliament had power to pass legislation for a referendum on Scottish independence, from Mr Keatings and from the Advocate General. The Lord Advocate did not make any submissions on that matter. Lady Carmichael did not express any view about those arguments.
5 February 2021