Jeremy Hagan Whaley And Trevor Adams And Julia Margaret Furness For Interdict And Interim Interdict V.
| Jurisdiction | Scotland |
| Judge | Lord Johnston |
| Date | 26 November 1999 |
| Court | Court of Session |
| Published date | 26 November 1999 |
| OUTER HOUSE, COURT OF SESSION
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| OPINION OF LORD JOHNSTON in Petition of JEREMY HAGAN WHALEY, TREVOR ADAMS and JULIA MARGARET FURNESS Petitioners; for Interdict and interim Interdict ________________
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Petitioners: Cullen, Q.C., Johnston; Brodies
Respondents: O'Brien, Q.C., Collins; Balfour & Manson for Lord Watson of Invergowrie: Dunlop; Scottish Parliamentary Corporate Body Legal Department
26 November 1999
In this petition the petitioners seek interdict against the respondent Lord Watson of Invergowrie as a member of the Scottish Parliament in relation to his conduct surrounding the preparation and the presentation to the Scottish Parliament of a Bill entitled "Protection of Wild Mammals Bill" (The Bill). At the hearing before me the respondent was represented as was the Parliamentary Corporation which acts on behalf of the Scottish Parliament in relation to legal issues.
A preliminary question arose as to whether or not that latter Corporation should be allowed to appear in the matter which was essentially as stated by counsel for the petitioners an issue between themselves and the respondent. Having heard argument I considered it was appropriate, not least because the novelty of the legislation and of the evolution of the Scottish Parliament, that they be represented through the Parliamentary Corporation and I allowed answers in that respect therefore to be lodged. In the result counsel for the Corporation added little to what was submitted on behalf of counsel for the respondent, albeit she supported that latter position.
The Bill seeks to make it an offence to hunt a wild mammal with a dog or to facilitate hunting in certain ways. The petitioners aver that in terms of Rule 9.14.5 of the Standing Orders of the Scottish Parliament a members Bill may be introduced by a member only if at least eleven other members have notified their support for the proposal within one month's notice of the proposal being given. The Bill received the necessary level of support but awaits a certificate of competence which the presiding officer is required to give in relation to every Bill being presented to the Parliament. Such is likely to be forthcoming and the petitioners understand that the respondent intends to introduce the Bill in the near future.
The petitioners make certain averments that the Scottish Campaign Against Hunting With Dogs ("SCAHD") which is an organisation designed to secure the abolition of hunting with dogs to which end it employs staff and raises funds, has been concerned to promote the Bill and in July 1999 approached the respondent inviting him to sponsor it. It is averred and admitted that SCAHD has provided the respondent with legal and administrative assistance and also drafting advice and the provision of a full time researcher. The respondent admits that he has received such assistance and will continue to do so but it is not disputed that he has not received any actual payment of money by way of a fee or expenses. The essence of the petitioners' position is that by accepting this assistance in the promotion and sponsoring of the Bill the respondent has breached certain rules in relation to members' interest which, it is averred and submitted denies him the right to present the Bill to Parliament.
The general legislative framework is of course the Scotland Act ("the Act") and certain pieces of subordinate legislation relating thereto but in order to focus the matter it is necessary to consider initially the terms of Section 40(3) and (4) of the Act which are in the following terms:
"(3) In any proceedings against the Parliament the Court shall not make an order for suspension, interdict, reduction or specific performance or any like order but may instead make a declarator.
(4) In any proceedings against -
a) any member of the Parliament ... the Court shall not make an order for suspension, interdict, reduction or specific performance or other like order if the effect of so doing would be to give any relief against the Parliament which could not have been given to proceedings against the Parliament."
This Section is thus concerned with the jurisdiction of this Court in relation to matters concerning the Scottish Parliament and will require to be considered by me in due course.
Section 39(4) of the Act provides, so far as material, as follows:
"Provision shall be made prohibiting a member of the Parliament from -
a) advocating or initiating any cause or matter on behalf of any person by any means specified in the provision in consideration of any payment or benefit in kind of a description so specified."
I was informed that the Scottish Parliament has not yet enacted any subordinate legislation in relation to this provision but the Westminster Parliament, by Statutory Instrument 1350/1999 (The Scotland Act 1998 (Transitory and Transitional Provisions (Members Interest) Order 1999) has enacted subordinate legislation in terms of transitional provisions in the Act and this I shall refer to as "the Order".
Article 6 of the Order is in the following terms:
"Where any time after the date on which he was returned as a member, a member receives or expects to receive any remuneration he shall not -
a) do anything in his capacity as a member in any proceedings of the Parliament which relate directly to the affairs or interests of or which seeks to confer the benefit on the person from whom the member receives or expects to receive remuneration or to the affairs and interests of a client or association of that person or
b) encourage any other member to do anything mentioned in paragraph (a)."
It is to be noted firstly that in the interpretation section remuneration is defined as "any salary, wage, share of profits, fee, expenses, other monetary benefit or benefit in kind", and secondly that breach of the Rules is an offence (section 39(6)).
The Order also has provisions requiring members to register certain interests and it is a matter of admission and agreement in the present case that the Standards Committee of the Parliament considered the relationship between the respondent and SCAHD and determined that he was sufficiently connected with that organisation to require him to register his interests with them which he has subsequently done. However the Standards Committee, and this is important in this case, held that he had not breached any advocacy rules such as would stem from Section 39(4) and are currently covered by Article 6 of the Order.
The right of the petitioners to bring this petition, it is averred, proceeds on assertions that they will suffer substantial prejudice in the event that the Bill is introduced and enacted. It is averred that fox hunting is the established way of life for each of the petitioners. The first petitioner earns substantial sums from the Berwickshire Hunt and from his farrier work. In the event that the Bill is enacted he will lose the opportunity to earn these sums. In addition the value of horses used for hunting, including those belonging to the first petitioner, would be affected and the hounds used for hunting would have no value and would have to be put down. The second petitioner is completely dependent on the Duke of Buccleuch's Hunt to earn a living for himself and his family and has no viable alternative options for employment. He occupies a tied cottage on the Duke of Buccleuch's estate and if he were to lose this job he and his family would lose this accommodation. The third petitioner would have to close her business and dispense with the services of her employee, move from her cottage at Thirlestane Castle and lose a substantial part of her livelihood.
As I have indicated there was substantial agreement by way of full and frank admission on the part of the respondent as to his connections with SCAHD but there was a specific denial that anything that had been provided to him had the result of breaching the provisions of Article 6 in the context of Section 39(4) under reference to the phrase "in consideration of any payment or benefit in kind".
In moving for interim interdict counsel for the petitioners focused immediately upon the phrase I have just quoted, and submitted that the word "consideration" should be given its normal meaning which in dictionary terms included the phrase "in return for". While it may be that the respondent had made no gain personally, he nevertheless had received benefits in kind by way of provision of services and assistance which otherwise he would have to provide from some other source and thus those very factors amounted to him acting in promoting the Bill in consideration of a benefit in kind. If the phrase in question was ambiguous then reference could be made to Hansard when the Scotland Bill was going through the Westminster Parliament under the provisions of Pepper v Hart 1993 3 A.C. 593. The relevant clause at the time was clause 22 and passages in Hansard at pages 564 and 569 in the House of Commons made it clear that the Government was demanding the highest standards in respect of the probity of members and what was being struck at was lobbying in any form which involved some form of receipt of the benefit in kind. Similar passages in the House of Lords debates focused on the same position and left the conclusion clearly to be drawn that what was covered was not just the taking of money but action in return from the receipt of any benefit in kind.
Counsel went on to submit that Section 40(4) of the Act did not strike at this application because it was against an individual member of Parliament, and not the Parliament itself and would have had no separate consequences in respect of the Parliament's position if the interdict was granted. It would merely restrain the respondent from presenting the Bill. Thus the relief that was being sought was not even equivalent to that which might otherwise be obtained against the Parliament but only against the individual. The jurisdiction...
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