Reclaiming Motion For Petitioners In Petition Of Jeremy Hagan Whaley And Trevor Adams And Julia Margaret Furness V. Lord Watson Of Invergowrie, The Scottish Parliament And The Scottish Parliamentary Corporate Body, Acting On Behalf Of The Scottish Parliament
| Jurisdiction | Scotland |
| Judge | Lord President |
| Date | 16 February 2000 |
| Docket Number | P2055/99 |
| Court | Court of Session |
| Published date | 16 February 2000 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| Lord President Lord Prosser Lord Morison
| P2055/99 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION FOR PETITIONERS in PETITION of JEREMY HAGAN WHALEY, TREVOR ADAMS and JULIA MARGARET FURNESS Petitioners and Reclaimers; against LORD WATSON OF INVERGOWRIE, The Scottish Parliament First respondent; and THE SCOTTISH PARLIAMENTARY CORPORATE BODY, acting on behalf of the Scottish Parliament Second respondents: _______ |
Act: Cullen, Q.C., D. Johnston; Brodies, W.S.
Alt: O'Brien, Q.C., Collins; Balfour & Manson: Dunlop; Scottish Parliamentary Corporate Body Legal Department
16 February 2000
In this petition for interdict the petitioners are Jeremy Hagan Whaley, Trevor Adams and Julia Margaret Furness while the first respondent is Lord Watson of Invergowrie, who is a Member of the Scottish Parliament but not a member of the Scottish Executive. The second respondents are the Scottish Parliamentary Corporate Body acting on behalf of the Parliament. In accordance with the provisions of Rule 9.14.2 of the Standing Orders set out in the Schedule to The Scotland Act 1998 (Transitory and Transitional Provisions)(Standing Orders and Parliamentary Publications) Order 1999 (1999 No. 1095), such members were entitled to introduce two Member's Bills in any session of the Parliament. In about September 1999 the first respondent submitted a draft proposal for a Bill entitled the "Protection of Wild Mammals Bill" ("the Bill") to the Parliamentary Bureau. The Bill seeks to make it an offence to hunt a wild mammal with a dog or to facilitate hunting in certain ways. In terms of Rule 9.14.5 of the Standing Orders, a Member's Bill could be introduced only if at least eleven other members notified their support for the proposal within a month. That requirement was met in the case of the Bill. Under Rule 9.3.1 on introduction a Bill required to be accompanied by a written statement signed by the Presiding Officer indicating whether or not in his view the provisions of the Bill in question would be within the legislative competence of the Parliament. On 2 December 1999 the Presiding Officer signed a statement to the effect that the provisions of the Bill would be within the legislative competence of the Parliament. The first respondent intends to introduce the Bill in the Parliament with a view to its enactment.
According to the averments in the petition the first petitioner earns substantial sums from the Berwickshire Hunt and from his farrier work. If the Bill is enacted, he will lose these earnings. He avers in addition that in that event his horses which he uses for hunting would be reduced in value and the hounds which are kept for hunting would have no value and would have to be put down. The second petitioner lives in a tied cottage on the estate of the Duke of Buccleuch. He avers that he is employed in connexion with the Duke of Buccleuch's Hunt and is totally dependent on it to support himself and his family. If hunting with hounds became illegal, he would be liable to lose both his income and his home. The third petitioner avers that, if the Bill were passed, she would have to close her business, dispense with the services of her employee, move from her cottage at Thirlestane Castle and lose a substantial part of her livelihood.
In those circumstances the petitioners seek interim interdict against the first respondent
"from doing anything in his capacity as a member of the Parliament in any proceedings of the Parliament relating to the proposed Protection of Wild Mammals Bill and in particular from introducing the Bill in Parliament and from encouraging any other Member to do likewise".
As counsel for the petitioners explained their position before this court, the basis upon which they ask for interdict is their averment that by introducing the Bill the first respondent would be in breach of Article 6 of The Scotland Act 1998 (Transitory and Transitional Provisions)(Members' Interests) Order 1999 (1999 No. 1350) which is headed "Advocacy" and which provides:
"Where, at 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 relates directly to the affairs or interests of, or which seeks to confer benefit upon, the person from whom the member received or expects to receive remuneration or to the affairs and interests of a client or an associate of that person; or
(b) encourage any other member to do anything mentioned in paragraph (a)."
In Article 2(1) "remuneration" is defined as including
"any salary, wage, share of profits, fee, expenses, other monetary benefit or benefit in kind".
I emphasise that before us counsel for the petitioners relied simply on Article 6 of the Order and not on Section 39(4) of the Scotland Act 1998 ("the 1998 Act") which is also mentioned in Statement 7 of the petition and on which the Lord Ordinary appears to have based part of his reasoning. For reasons which I give below, I am satisfied that Article 6 is the operative provision for present purposes.
The petitioners' case for saying that the first respondent would be in breach of Article 6 if he were to introduce the Bill revolves around his position in relation to the Scottish Campaign against Hunting with Dogs ("the Campaign"). It should be stressed immediately that the first respondent has not at any stage sought to conceal his connexion with the Campaign. Moreover, the petitioners acknowledge that he has at all times acted entirely honourably in the matter. The basic facts are not really in dispute, although the legal interpretation of those facts is somewhat controversial. The objective of the Campaign is to secure the abolition of hunting with dogs and, to this end, it employs staff and raises funds. From the time when the Scottish Parliament was set up the Campaign was concerned to promote a Bill to abolish hunting with dogs and in about July 1999 it approached the first respondent and invited him to sponsor such a Bill. The Campaign offered to provide the first respondent with all the necessary legal and administrative assistance and support, including advice on drafting, in relation to such a Bill. The first respondent accepted the assistance and support and agreed to promote and introduce a Bill. The Campaign is continuing to provide administrative support and drafting and legal assistance to the first respondent and proposes to do so in future. In his averments in Answer 2 the first respondent explains that the Campaign paid for legal advice in order to frame the draft Bill and it also seconded an administrative assistant, employed by the Campaign, to assist the first respondent on two days a week with correspondence concerning the Bill. Without the support from the Campaign, the first respondent would be unable to introduce and support the Bill.
The contention for the petitioners is that the first respondent has received the support and assistance from the Campaign in return for agreeing to introduce the Bill. In that situation they say that the support and assistance constitute remuneration in the form of a "benefit in kind" and that the first respondent has therefore received and continues to receive "remuneration" from the Campaign in terms of Article 6(a). That being so, by introducing the Bill he would be in breach of the ban on him doing anything in his capacity as a member in any proceedings of the Parliament which relates directly to the affairs or interests of, or which seeks to confer benefit upon, the Campaign from which he has received and continues to receive remuneration.
The only remedies for the alleged breach of Article 6 which the petitioners specifically crave in the prayer of the petition are interdict and interim interdict, though the court does have the usual power in terms of the prayer "to do further or otherwise in the premises" as shall seem proper. One of the central arguments for the first respondent is, however, that it would be incompetent for the court to grant either interdict or interim interdict in this case because of the terms of Section 40(3) and (4) of the 1998 Act. Section 40(1) provides that proceedings against the Parliament are to be instituted against the Scottish Parliamentary Corporate Body, the second respondents, on behalf of the Parliament. Subsections (3) and (4) 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 other like order) but may instead make a declarator.
(4)In any proceedings against
(a)any member of the Parliament
(b)the Presiding Officer or a deputy,
(c)any member of the staff of the Parliament, or
(d)the Parliamentary corporation,
the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been give in proceedings against the Parliament."
In relation to the argument on the competency of a decree of interdict in the present case it is of some importance to notice that Mr. Ben Wallace, M.S.P., made two complaints based on the first respondent's relationship with the Campaign. First, he complained that the first respondent should have registered the support which he had received from the Campaign in the register of members' interests. On 10 November 1999 the Standards Committee of the Parliament decided that the first respondent should have registered the support as sponsorship under paragraph 5 of the Schedule to the members' interests order. I understand that the first respondent has now done this. Secondly, Mr. Wallace complained that the first respondent had breached the advocacy rule in Article 6 by lodging a proposal for the Bill. At the same meeting the...
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