Reclaiming Motion By Martin James Keatings Against The Advocate General And Another
| Jurisdiction | Scotland |
| Judge | Lord Doherty,Lord Menzies,Lord President |
| Neutral Citation | [2021] CSIH 25 |
| Date | 30 April 2021 |
| Docket Number | A76/20 |
| Court | Court of Session |
| Published date | 30 April 2021 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 25
A76/20
Lord President
Lord Menzies
Lord Doherty
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
MARTIN JAMES KEATINGS
Pursuer and Reclaimer
against
(First) THE ADVOCATE GENERAL; and (Second) THE LORD ADVOCATE
Defenders and Respondents
______________
Pursuer and Reclaimer: O’Neill QC, Welsh; Balfour & Manson LLP
First Defender and Respondent: Webster QC, Pirie; Office of the Advocate General
Second Defender and Respondent: Mure QC, C O’Neill QC (sol adv); Scottish Government
Lega l Directorate
30 April 2021
Introduction
[1] The pursuer is a campaigner for Scottish independence. He is a voter in the
upcoming election for the Scottish Parliament. He seeks two declarator s. The first is that the
Scottish Parliament has power under the Scotland Act 1998 to legislate for a referendum on
whether Scotland should be independent, without requiring the consent of the United
2
Kingdom Government. The second is that the Scottish Government’s “proposed Act”
concernin g an independence referendum contain s no provisions which would be outside the
Parliament’s legislative competence.
[2] Although called as third defenders, the Scottish Ministers withdrew their defences.
The action was also intimated to the Parliamentary Corporate Body, but they elected not to
intervene. The first and second defenders plead inter a lia that : the pursuer has no title,
interest or standing to sue; the action is academic, hypothetical, premature and thus
incompetent; and the declarators are inconsistent with the structure of the 1998 Act. The
pursuer responds with a plea that the defences are irrelevant and decree shou ld be
pronou nced de plano. By interlocutor dated 4 November 2020, the Lord Ordinary remitted
all these pleas to the Procedure Roll for a debate. Meantime, on 30 July 2020, the pursuer’s
motion for a Protective Expenses Order had been refused (2021 SLT 8).
[3] By interlocutor dated 5 Februar y 2021 (2021 SLT 233) the Lord Ordinary sustained
the defenders’ pleas that th e action was academic, hypothetical, premature and thus
incompetent but repelled the plea that it was inconsistent with the 1998 Act. The pursuer
reclaims the decision that th e action was incompetent and the defenders reclaim it in so far
as relating to its inconsistency with the Act.
[4] The reclaiming motion is therefore primarily about whether the pursuer can obtain a
declarator that the holding of a referendum on Scottish independence would be within the
powers of the Parliament and that what is now a draft Scottish Independence Referendum
Bill would be within legislative competence. There is a subsidiary challenge to the refusal to
grant the PEO.
To continue reading
Request your trial