Keatings v Advocate General for Scotland
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Judgment Date | 30 April 2021 |
| Neutral Citation | [2021] CSIH 25 |
| Court | Court of Session (Inner House) |
| Docket Number | No 20 |
[2021] CSIH 25
Lady Carmichael
First Division
Constitutional law — Scottish Parliament — Legislative competence — Whether Scottish Parliament had power to legislate for holding of referendum on Scottish independence without consent of UK Government — Whether proceedings hypothetical, academic and premature thereby incompetent
Process — Declarator — Whether pursuer entitled to declarator notwithstanding existence of statutory remedies in respect of scrutiny of Bills of Scottish Parliament
Expenses — Protective expenses order — Whether reclaiming motion against refusal competent
Section 63A(3) of the Scotland Act 1998 (cap 46) declares that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum. By virtue of sec 29, an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament, including any that relates to reserved matters or is in breach of the restrictions in sch 4. In terms of para 1(2)(a) of sch 4, an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, Art 4 and 6 of the Union with Scotland Act 1706 (6 Ann cap 11) and of the Union with England Act 1707 (APS c 7), so far as they relate to freedom of trade. In terms of sec 30 and para 1(b) of sch 5, reserved matters include the union of the kingdoms of Scotland and England, and the Parliament of the United Kingdom. Section 33(1) allows the Advocate General, Lord Advocate or Attorney-General to refer whether a Bill would be within legislative competence to the UK Supreme Court. Section 40(3) provides that, in any proceedings against the Scottish Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.
In September 2020, the Scottish Government indicated an intention to publish a draft Bill for a referendum on Scottish independence before the end of the parliamentary term. The pursuer was a campaigner for Scottish independence and, at that time, a prospective voter in the Scottish parliamentary elections due to take place in May 2021. He raised proceedings for declarators that the Scottish Parliament had the power to legislate for the holding of a referendum, without requiring the consent of the UK Government, and that the Scottish Government's proposed Act contained no provision which would be outside the legislative competence of the Scottish Parliament.
At first instance, the Lord Ordinary (Carmichael) sustained the defenders' pleas that the action was academic, hypothetical, premature and thus incompetent, but repelled the defenders' plea that the declarators were inconsistent with the structure of the 1998 Act ([2021] CSOH 16). The pursuer reclaimed the decision that the action was incompetent, and the defenders cross-appealed in so far as relating to inconsistency with the Act. The pursuer advanced a subsidiary challenge in respect of the refusal of a protective expenses order (‘PEO’) on the basis that the Lord Ordinary (Poole) had innovated on the common law criteria, had made wrong assumptions and taken irrelevant matters into account ([2020] CSOH 75). A PEO was refused by the procedural judge in the course of the reclaiming motion, on 22 February 2021.
Held that: (1) the principle of access to justice required that, as a generality, anyone could apply to the court to determine what the law was in a given situation, but there were limits, including that the court would not determine hypothetical or academic questions; the court should only determine a hypothetical question if there was a good reason for doing so, and it would be a good reason not to do so that it would be to usurp or encroach upon a function specifically conferred upon Parliament, such as the scrutiny of Bills (paras 51, 52); (2) where a bare declarator was sought, it must have a purpose and produce a practical result for the person seeking the remedy (para 53); (3) the pursuer did not require a declarator in order to exercise his right to vote; whether his voting might be influenced by the Parliament's competence would fall far short of providing a sufficient basis for the court to adjudicate upon the issue (para 54); (4) a decision on the matters litigated would serve no practical purpose, and the current remedies sought were premature, hypothetical and academic, in the circumstances where there was no Bill before the Parliament, the result of the election was not known, and a Bill may or may not be introduced, may or may not be passed, and may be amended; if passed, the UK Government may or may not be prepared to obtain an Order in Council to allow the Bill to proceed to royal assent, and, if passed without such an Order, it was highly probable that the UK Government's law officers would refer the Bill to the UK Supreme Court (para 55); (5) the Scottish Parliament was, as a generality, subject to the jurisdiction of the court, including whether the Parliament had acted within its powers, but that jurisdiction could be excluded expressly or by necessary implication; an attempt to exclude the jurisdiction of the court would require clear and unambiguous terms but this was not such a case and a specific statutory remedy was provided in relation to the scrutiny of Bills, subject to the ability of an affected person to challenge any subsequent Act (paras 57–59); (6) the contents of a Bill could not be outwith legislative competence, and the scrutiny of Bills was confined to the UK Supreme Court (paras 60–62); (7) if the court were to answer the questions asked, it would have done so as a matter of straightforward statutory interpretation on whether an Act to hold a referendum “relates to” (1998 Act, sec 29(2)(b)) “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5, Pt I, para 1(b), (c)) having regard to its effect in all the circumstances (sec 29(3)), and the Act would relate to these reserved matters if it had more than a loose or consequential connection with them (paras 63, 66); (8) the reclaiming motion against the Lord Ordinary's refusal of a PEO was incompetent as res judicata following upon its refusal by the procedural judge; in any event, it was not necessary to review the interlocutor for the purposes of doing justice in the reclaiming motion; the pursuer having acquiesced in the original refusal (paras 67–69); and the Lord Ordinary's interlocutor adhered to to the extent of dismissal of the action and refusal of a PEO, and the defenders' cross-appeal allowed.
Observed that: (1) the figures provided to the Lord Ordinary about the potential level of expenses provided considerable cause for concern in so far as judicial review was designed to be a “speedy and cheap” method of review (Brown v Hamilton District Council; Prior v Scottish Ministers) (para 70); and (2) it was disappointing that the pursuer had elected to present his argument in a written form which bore only a passing resemblance to the requirements of Practice Note (No 3 of 2011): Causes in the Inner House and contained references to authorities grossly in excess of the number which had been permitted by the court; these were matters which, in an appropriate case, the court and the Auditor may wish to take into account (para 20).
AXA General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122, Wightman v Secretary of State for Exiting the European Union2019 SC 111, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill2019 SC (UKSC) 13, Westminster Bank Ltd v Minister of Housing and Local Government[1971] AC 508, R (Child Poverty Action Group) v Secretary of State for Work and Pensions[2011] 2 AC 15, R (Privacy International) v Investigatory Powers Tribunal[2020] AC 491 and R (UNISON) v Lord Chancellor[2020] AC 869considered.
AXA General Insurance Co Ltd v Lord Advocate sub nom AXA General Insurance Ltd, Petrs; AXA General Insurance Ltd and ors v HM Advocate and ors[2011] UKSC 46; 2012 SC (UKSC) 122; 2011 SLT 1061; [2011] 3 WLR 871; [2012] HRLR 3; [2011] UKHRR 1221; 122 BMLR 149; 108 (41) LSG 22; The Times, 19 October 2011
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62; [2019] 1 AC 777; [2017] 3 WLR 957; [2018] 1 All ER 662; [2017] ICR 1327; [2018] IRLR 123; [2017] HRLR 15; 43 BHRC 378; The Times, 31 October 2017
Brown v Hamilton District Council 1983 SC (HL) 1; 1983 SLT 397
Cherry and ors v Advocate General for Scotland sub nom R (on the application of Miller) v Prime Minister [2019] UKSC 41; 2020 SC (UKSC) 1; 2019 SLT 1143; 2019 SCLR 1028; [2020] AC 373; [2019] 3 WLR 589; [2019] 4 All ER 299; The Times, 14 October 2019 and [2019] CSIH 49; 2020 SC 37; 2019 SLT 1097; 2019 SCLR 986; The Times, 15 September 2019
Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; 2016 SLT 805; 2016 SCLR 448; [2016] HRLR 19; [2016] ELR 474; 19 CCL Rep 422; The Times, 26 September 2016
Clark v Greater Glasgow Health Board [2017] CSIH 17; 2017 SC 297; 2017 GWD 7-96
Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343
Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49; [2007] 1 AC 558; [2006] 3 WLR 781; [2007] 1 All ER 449; [2007] STC 1; [2007] 1 CMLR 14; [2007] Eu LR 226; 78 TC 120; [2006] BTC 781; 9 ITL Rep 201; [2006] STI 2386
Gibson v Scottish Ministers [2016] CSIH 10; 2016 SC 454; 2016 SLT 319; 2016 SCLR 718
Imperial Tobacco Ltd v Lord Advocate sub nom Imperial Tobacco Ltd, Petr [2012] UKSC 61; 2013 SC (UKSC) 153; 2013 SLT 2; 2013 SCLR 121; [2013] LLR 6; The Times, 21 January 2013
John Muir Trust v Scottish Ministers [2016] CSIH 61; 2017 SC 207; 2016 GWD 24-453
Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518; [2001] 2 WLR...
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