Whaley v Lord Watson
| Jurisdiction | Scotland |
| Judgment Date | 16 February 2000 |
| Docket Number | No 38 |
| Date | 16 February 2000 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Johnston
Constitutional Law—Scottish Parliament—Proceedings against member—Competency—Member of Scottish Parliament proposing to introduce private member's Bill to outlaw certain blood sports—Member having registered his interests in organisation committed to abolition of hunting with dogs—Private persons seeking to interdict member from introducing Bill on ground that member had accepted assistance from organisation in promoting Bill—Parliamentary standards committee having determined that member had not breached Parliamentary rules relating to members' interests—Whether interdict competent—Whether interdict precluded by standards committee's decision—Whether Parliamentary rules prohibiting paid advocacy conferring civil right on private persons—Scotland Act 1998 (cap 46) secs 40(3), (4) and 129(1)—The Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (SI 1999 No 1350), art 61
Section 40(3) of the Scotland Act 1998 enacts that in any proceedings against the Scottish 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. Subsection (4) enacts,inter alia, that in any proceedings against 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 in proceedings against the Parliament. Article 6 of The Scotland Act 1998 (Transitory and Transitional Provisions) (Members' Interests) Order 1999 (which was made by the United Kingdom Parliament under sec 129(1) of the Scotland Act 1998) provides, inter alia, that where a member of the Scottish Parliament receives any remuneration, he shall not 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 remuneration.
The petitioners, whose livelihoods were to a large extent dependent on fox hunting in Scotland, sought interim interdict against a member of the Scottish Parliament against his introducing a private member's Bill to abolish hunting of mammals. The petitioners alleged (and the member admitted) that the member had registered his interests in an organisation which was formed to secure the abolition of hunting with dogs and that that organisation had provided legal and administrative assistance, drafting advice and a full-time researcher to the member in support of the Bill. The standards committee of the Scottish Parliament had determined that the member had not breached art 6 of the 1999 Order relating to members' interests in respect of the assistance which the organisation had provided to him. The Lord Ordinary (Johnston) refused interim interdict on the view that the petitioners were attempting to achieve, by a roundabout method, the obstruction of the legitimate presentation of the Bill, that interdict was accordingly incompetent by virtue of sec 40(4) of the 1998 Act and that, in any event, the court was precluded from pronouncing interdict because to do so would in effect be to suspend the standards committee's decision. The petitioners reclaimed.
Held (1) that since sec 40(4) was designed to prevent parties from obtaining in substance remedies affecting the Scottish Parliament which they could not obtain in proceedings against the Scottish Parliament, it followed that subsec (4)
applied where proceedings for some legal wrong could lie against the Scottish Parliament (pp 351C, 357D, 365C–E); (2) that as a breach of art 6 could never be committed by the Scottish Parliament itself, and as any interdict against the member accordingly could not have the effect of interdicting a wrong by the Scottish Parliament, the remedies craved by the petitioners were not rendered incompetent by sec 40(4) (pp 351D–E, 357D, 365C–E); (3) that a decision of the standards committee that no breach of art 6 had occurred constituted no bar to the proceedings as to hold otherwise would be to undermine both the independence of the Crown prosecuting authorities and the independence of the courts (pp 352B–C, 356G, 367C); (4) (Lord Morisondiss) that while the Court of Session had jurisdiction to decide whether members of the public had a right to prevent any breach of art 6, the United Kingdom Parliament, in making the 1999 Order, had not conferred a “civil” right on a member of the public to secure compliance with art 6 and accordingly the petitioners had no right to interdict a threatened breach of art 6 (pp 354D–E, 361D); and (5) (Lord Morison diss) that the balance of convenience did not favour the grant of interim interdict since on the most favourable version of the facts from the petitioners' point of view, their case was unsound (pp 356D, 359F); and reclaiming motion refused.Observed (per Lord Prosser) that as art 6 appeared to be dealing with the mischief of paid advocacy and not seeking to achieve an equality of arms between persons who are for or against some piece of legislation, the member's actions as averred by the petitioners, though they might be seen as examples of this wider problem, were not a case of “remuneration” (pp 360I–361C).
Jeremy Hagan Whaley, Trevor Adams and Julia Margaret Furness presented a petition to the Court of Session praying for interdict against Lord Watson of Invergowrie, a member of the Scottish Parliament, “from doing anything in his capacity as a member of the Scottish 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”. Lord Watson was called as first respondent and the second respondent, the Scottish Parliamentary Corporate Body, was granted leave to lodge answers on behalf of the Scottish Parliament.
The full facts and the averments of parties appear sufficiently from the opinion of the Lord President (Rodger).
The cause called on the motion roll before the Lord Ordinary (Johnston) on the petitioners' motion for interim interdict on 24 November 1999.
At advising, on 26 November 1999, the Lord Ordinary refused interim interdict and dismissed the petition: seeWhaley v Lord WatsonSC 2000 SC 125.
The petitioners reclaimed.
ases referred to:
Black v Fife Coal Co Ltd 1912 SC (HL) 33
Cutler v Wandsworth Stadium LtdELR [1949] AC 398
Grahame v Magistrates of Kirkcaldy (1882) 9 R (HL) 91
Guaranty Trust Co of New York v Hannay & CoELR [1915] 2 KB 536
IRC v PlummerELR [1980] AC 896
Institute of Patent Agents v Lockwood (1894) 21 R (HL) 61
McDonald v Secretary of State for Scotland 1994 SLT 692
R v IRC, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
R v Parliamentary Commissioner for Standards, ex parteAl Fayed [1998] 1 WLR 669
R v Secretary of State for Transport, ex parteFactortame Ltd [1990] ECR I–2433
Reid v Mini-CabsSC 1966 SC 137
Wilson v Independent Broadcasting AuthoritySC 1979 SC 351
Textbooks, etc referred to:
Erskine May, Parliamentary Practice (22nd ed), ch 20 and p 427
Mitchell, Constitutional Law (2nd ed), p 309
Guide (The) to the Rules relating to the Conduct of Members (24 July 1996) (HC Papers 688), para 58
Sixth Report of the Committee on Standards in Public Life(January 2000) (Cm 4557), paras 3.77–3.96
The cause called before the First Division, comprising the Lord President (Rodger), Lord Prosser and Lord Morison, for a hearing on the summar roll on 9, 10 and 13 December 1999.
At advising, on 16 February 2000—
LORD PRESIDENT (Rodger)—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 r 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 (SI 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 r 9.14.5 of the Standing Orders, a member's Bill could be introduced only if at least 11 other members notified their support for the proposal within a month. That requirement was met in the case of the Bill. Under r 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...
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