Apr 30, 2021
During a hearing in February, Martin Keatings had asked the Court of Session to pronounce two declarators: that the Scottish Parliament has the power to hold an independence referendum without requiring the consent of the UK Government; and that the draft Scottish Independence Referendum Bill contains no provisions which would be outside the Scottish Parliament’s legislative competence.
Following that hearing, the judge at first instance ruled that, although the action fell within the Court’s jurisdiction, it was hypothetical and premature and should be dismissed.
The pursuer appealed against the part of the decision that ruled the action was premature; while the Lord Advocate appealed against the part of the decision that ruled the action fell within the Court’s jurisdiction.
In an Opinion issued today, three judges refused the pursuer’s appeal, upholding the decision that the action was hypothetical and premature, but allowed the Lord Advocate’s appeal, ruling that the action was inconsistent with the Scotland Act 1998 (which established the Scottish Parliament).
In his appeal, Martin Keatings asked the Court to exercise its constitutional jurisdiction to safeguard democracy. He argued that the Scottish Parliament’s legitimacy now derived from the people of Scotland.
He argued that his action was not hypothetical. The Scottish Government was seeking re-election on the basis of a promise to introduce an Independence Referendum Bill. The pursuer was entitled to a ruling on whether the Bill was lawful. This would allow him to vote in an informed way in the forthcoming election. The declarators would not bind MSPs to act in a particular way, but they would enable voters to hold them to account.
The Advocate General argued that the action was hypothetical. The courts were “neither a debating club nor an advisory bureau”. The declarators, if granted, would have no real practical effect.
A referendum on Scottish independence would affect two reserved matters: the Union, and the UK Parliament.
The Lord Advocate argued in addition that the Court did not have jurisdiction to consider the application, because the Scotland Act 1998 made clear that the only court which could scrutinise a Bill prior to Royal Assent was the UK Supreme Court. Otherwise, multiple courts could provide inconsistent decisions disrupting the legislative process.
The judges of the appellate division agreed that it was correct to dismiss the action on the basis that the declarators sought were abstract, hypothetical and premature. A declarator was not required to enable the pursuer to cast a vote in the election. The current remedies sought were premature in that a Bill, as opposed to an Act of Parliament, had no legislative force.
In delivering the opinion of the Court, the Lord President, Lord Carloway, said: “A draft Bill has no legal status. The result of the election is not yet known. A Bill may or may not be introduced, depending upon the Government formed as a consequence of the election. If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended. The UK Government may or may not be prepared to obtain an Order in Council under section 30 of the 1998 Act, which would, in any event, allow the Bill to proceed to Royal Assent. If the Bill were passed without such an Order, it is highly probable that the UK Government’s law officers would refer the Bill for scrutiny by the UK Supreme Court. All of these eventualities render the current remedies sought premature, hypothetical and academic. A decision by this Court on the matters litigated would serve no practical purpose.”
In allowing the Lord Advocate’s appeal the Court held that it was clear from the scheme of the Scotland Act 1988 that section 33 provided the only method by which a court could scrutinise a measure for legislative competency prior to Royal Assent.
The judges concluded: “Were the Court to have been of the view that it ought to have answered the questions asked, it would have done so as a matter of straightforward statutory interpretation” of the Scotland Act 1998. “The question would have been whether an Act to hold a referendum on Scottish Independence ‘relates to the Union of the Kingdoms of Scotland and England’ or ‘the Parliament of the United Kingdom’ having regard to its effect in all the circumstances. Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.”
30 April 2021