Note of Argument in the Peoples Action on Section 30

Note: At the conclusion of the elections this website will return to being Martins Blog, which has been inactive for way too long. All matters concerning the people’s action will now be posted on this site.

IN THE COURT OF SESSION

NOTE OF ARGUMENT IN SUPPORT OF THE GROUNDS OF APPEAL FOR THE PURSUER AND RECLAIMER

 

in the cause 

MARTIN JAMES KEATINGS

PURSUER AND RECLAIMER

against

(FIRST) THE ADVOCATE GENERAL FOR SCOTLAND, Victoria Quay, Edinburgh, EH6 6QQ; and (SECOND) THE LORD ADVOCATE, Crown Office, Chambers Street, Edinburgh EH1 1LB (THIRD) THE SCOTTISH MINISTERS, Victoria Quay, Edinburgh, EH6 6QQ

DEFENDERS AND RESPONDENTS

____________________________

1.       INTRODUCTION

1.1. The argument for the pursuer, which was presented before the court below, was that under the Scotland Act 1998 as it stands (particularly in the light of amendments made to subsequent to the last independence referendum, notably in response to the Smith Commission on further devolution of powers set up in response to “The Vow” made by a number of leading unionist politicians in the immediate run up to the referendum) and in the light of relevant underlying constitutional principles of democratic accountability, it cannot  (if it could ever) be said that it is ultra vires for the Scottish Parliament to legislate for the holding of “a referendum on the independence of Scotland from the rest of the United Kingdom.  The pursuer accordingly sought suitable declarators from the court to this effect.

1.2. The Lord Ordinary refused to give any answer to the legal questions on which the pursuer sought an authoritative ruling of the court (despite having heard full arguments both for and against on the substance of these questions from the pursuer and from the UK Government).  In so doing she erred in law.   The errors which the court below made can only properly identified be understood against the full constitutional background which was put before the court.   This note of argument accordingly sets out the terms of the substantive arguments which were presented to the court below.  This not only allows this court to determine how the Lord Ordinary erred in law in her approach but allows the court itself to determine the legal issues which this action raises in exercise of its jurisdiction as guardian of the constitution.

 

2.       THE PURSUERS CASE FOR A DECLARATOR

The democratic principle

2.1 It is clear that from its original oligarchic, phallocratic and sectarian beginnings in 1707, the United Kingdom may be said to have been in a process of evolution over the course of 300 years towards becoming a democracy, with the gradual extension of a franchise to Parliament originally restricted to Protestant propertied adult males in the 18th century, through the easing and abolition of property and religious tests for male voters in the 19th century, to the early 20th century’s eventual granting of equal voting right for women, to the abolition of multiple voting rights (for business property owners and university graduates) in the mid20th century and, in the first decades of 21st century Scotland, at least, the lowering of the voting age to 16.    But the fact that the second chamber of the Union Parliament, the House of Lords, is wholly unelected and its members (other than the Church of England bishops given seats their ex officio as Lords Spiritual) appointed by the executive for life shows that democracy still has some way to go before being realised in this State of Nations that is the Union polity.

2.2 Further, in passing the Scottish Elections (Franchise and Representation) (Scotland) Act 2020 and the Senedd and Elections (Wales) Act 2020 by the necessary parliamentary supermajorities needed for a change in the devolved franchise, the Scottish and Welsh Parliaments have each, in response to Brexit, maintained the pre-Brexit voting rights of EU citizens to these devolved legislatures.   Indeed, the Scottish Parliament and Welsh Senedd  have gone further in extending the franchise to their elections (and to the local government elections in their territories) so that all lawfully resident in Scotland and in Wales respectively, including refugees, may vote and so participate in the political life of the community regardless of their nationality. These non-UK citizens, lawfully resident in Scotland and Wales, may therefore be said to constitute full members of the demos within each of these devolved nations.

2.3 So what we can say is that the arc of our constitution bends towards democracy.  It is not there yet, but that is where it is headed.    And frankly it has in large measure been the Scottish constitutional tradition which has pulled the Union constitution ever closer to the realisation of the democratic ideal.   This is because this constitutional ideal of government of the people, by the people and for the people has deep roots within the Scottish constitutional tradition (deeper roots perhaps than the parallel constitutional tradition in England, as the different Reformation settlements show).   This is seen most clearly in the contrast between Scotland’s national ecclesiastical settlement immediately prior to the 1707 Union (which was stated to be unalterable as one of the fundamental conditions of that union) which was Presbyterian, Republican and Calvinist.1  By contrast, England’s post-reformation settlement was ultimately Episcopal, monarchical and Erastian and may best captured up in the phrase: rex in regno suo imperator est – that is to say that the king wielded supreme imperial authority within his own realm, over the church, over Parliament and over the people.[1]    By contrast in Scotland, as George Buchanan wrote in De iure regni apud Scotos

“I want the people who have granted the king authority over themselves to be allowed to dictate to him the extent of his authority, and I require him to exercise as a king only such right as the people have granted him over them[2]

2.4 This means of course that in the Scottish constitutional tradition the principle of democracy is directly opposed to majoritarian tyranny or any form of what Lord Hailsham referred to as “elective dictatorship” [3][4][5] or what Dicey  – an Edwardian patriarchal Anglo-imperialist whose time,

1 The Scottish Presbyterian tradition is best captured by the Scottish Reformer Andrew Melville’s pungent description of the King as “God’s Sillie vassal”.  The exchange with James VI is captured, in its original Scots, Andrew Melville’s nephew James in The Autobiography and Diary of James Melvill, with a Continuation of the Diary (R Pitcairn ed, 1842) in which Melville is said to have reminded the king that under the reformed presbyterian settlement he 

“was God’s silly vassal … and that there are two kings and two kingdoms in Scotland. There is Christ Jesus the King, and His kingdom the Church, whose subject King James VI is – and of whose kingdom, not a king, nor a lord, nor a head, but a member he was.”

 

surely, has passed 5 – described as being “the one fundamental dogma of English (sic) constitutional law, namely the “despotism of the King in Parliament.6    Whether or not this fundamentally anti-democratic reference to “despotism” ever properly stated the position in

                                            

5 See e.g. D. Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ (2016) 36 Oxford Journal of Legal Studies 751–780 at 763, 764:

“Maintaining Britain’s imperial greatness represented, in Dicey’s view, a dutiful continuation of its historical trajectory and fulfilment of its destiny. This notion was especially manifest in Dicey’s repudiation of Irish Home Rule: it presaged the diminution of the Empire and thus

‘a deliberate and complete surrender of the objects at which English statesmanship has, under one form or another, aimed for centuries’: AV Dicey, ‘Home Rule from an English Point of View’ (1882) 42 Contemporary Review 66, 68.

Moreover, though Dicey liked to style himself as a ‘sane’ or ‘stern’ imperialist, he was not immune from appreciating the patriotic spirit of British imperialism. As he explained in Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (Macmillan & Co 1905) at 454-5,

‘[i]imperialism is to all who share it a form of passionate feeling’, ‘a political religion’, ‘a form of patriotism which has a high absolute worth of its own, and is both excited and justified by the lessons of history’, which taught of English greatness. 

And as the 20th century wore on, with renewed threats to the Empire from Home Rule and German aggression, Dicey participated in the fervour, insisting in his A Fool’s Paradise: Being a Constitutionalist’s Criticism on the Home Rule Bill of 1912 (John Murray 1913) at 24 that ‘I yield to no man in my passion for the greatness, the strength, the glory, and the moral unity of the British Empire’.

All of these justifications for imperialism – self-preservation, securing the blessings of English liberty, order and peace throughout the world, and nationalistic sentiment—came together in the extraordinary closing passages of his 1915 edition of his Introduction to the Study of the Law of the Constitution 1915 Introduction. Normally adopting at least the façade of objectivity in his academic works, an octogenarian Dicey, with the war weighing heavily on his mind, dropped any pretence of disinterest:

‘The whole of a kingdom, or rather of an Empire, united for once in spirit, has entered with enthusiasm upon an arduous conflict with a nation possessed of the largest and the most highly trained army which the modern world can produce. … England and the whole British Empire with her have taken up the sword and thereby have risked the loss of wealth, of prosperity, and even of political existence. And England, with the fervent consent of the people of every land subject to the rule of our King, has thus exchanged the prosperity of peace for the dangers and labours of war, not for the sake of acquiring new territory or of gaining additional military glory, for of these things she has enough and more than enough already, but for the sake of enforcing the plainest rules of international justice and the plainest dictates of common humanity. This is a matter of good omen for the happy development of popular government and for the progress, slow though it be, of mankind along the path of true fortitude and of real righteousness.’

 

6 A. V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982), at 29 and 33: “A sovereign may wish to do many things which he either cannot do at all or can do only at great risk of serious resistance, and it is on many accounts worth observation that the exact point at which the external limitation begins to operate, that is, the point at which subjects will offer serious or insuperable resistance to the commands of a ruler whom they generally obey, is never fixed with precision. 

It would be rash of the Imperial Parliament to abolish the Scotch Law Courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scotch resistance to such a change would become serious. …

The one fundamental dogma of English (sic) constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution.”.

 

the English constitutional law – in which the dominant myth appears to be one of unbroken the continuity of England’s institutions of government (Crown, Courts, and Parliament) since the Middle Ages 7 – the accuracy of Dicey’s description of the post 1707 Union constitution was, of course, challenged by the Lord President of the Court of Session, Lord Cooper of Culross,8 as being incompatible with the specifically Scottish constitutional

                                            

7    See for example A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68 per Lord Hoffmann at § 91:

“The ‘nation’ is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the ‘life’ of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity.”

 

On this model, for example, England’s radical regicidal republican regime in the seventeenth century under Oliver Cromwell (prefiguring and inspiring in many ways the French and Russian revolutions) is denied any foundational significance, becoming instead a ‘non-event’, referred to as the ‘interregnum’, simply an 11 year gap between the reign of Charles I and the accession of his son Charles II, when constitutional continuity is restored. And England’s political unions with the other nations within the Atlantic Isles becomes, on this narrative (if ever, indeed, thought about at all) simply the formal territorial annexations to a ‘greater England’ of Wales, Scotland and Ireland respectively, rather than the creation of a new (British) State.

 

8   In MacCormick v. Lord Advocate, 1953 SC 39 IH, Lord President Cooper observed:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions.”

 

See too the remarks of Lord Hope (albeit also in a nonjudicial extra-curial capacity) Lord Gray’s Motion – House of Lords Committee of Privileges, 2000 SC (HL) 46 at 59B, 59D, 62F

 

“[T]he character of the Anglo-Scottish Union does not make the idea of a constitutional jurisdiction vested in the Court of Session with appeal to the House of Lords inherently absurd, and they conclude that it cannot be demonstrated from existing precedents that under no circumstances could the basic rule of legislative supremacy be qualified by judicial decision. … [T]he argument that the legislative powers of the new Parliament of Great Britain were subject to the restrictions expressed in the Union Agreement by which it was constituted cannot be dismissed as entirely fanciful. … There is the doctrine of sovereignty of Parliament. Whatever view


tradition which while recognising the radical disruptions in the identity of the various institutions of governance which have over the centuries held sway over these islands, nonetheless posits a continuity of a fundamentally democratic idea or ideal of sovereignty ultimately resting with people.

2.5 In any event, the understanding of what the constitution is – and what it requires – moves on; as even Dicey recognised.9   Dicey famously opposed any move for “Home Rule of Ireland” and he would doubtless have been appalled by the Irish Free State’s gradual bootstrapping itself from being a Dominion in the British Empire under the Crown  to an independent Republic outside the British Commonwealth.   Crucially and fatally for Dicey’s theory, the process of Irish independence involved the recognition within British constitutional practice of the concept of fundamental sovereignty of the people, the Irish demos.   This is because the British Parliament’s Union with Ireland Act 1800 and the Irish Parliament’s Union with Great Britain 1800 each provided in Article 1 that “the kingdoms of Great Britain and Ireland would on 1 January 1801 “and for ever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland” and in Article 3 “that the said United Kingdom be represented in one and the same Parliament, to be styled the Parliament of the United Kingdom of Great Britain and Ireland”.   The Proclamation of the Irish Republic, which was read out from the steps of the Dublin General Post Office on Easter Monday 1916, sought however to repudiate this BritishIrish Union in the name of (Irish) popular sovereignty, declaring: “the right of the people of Ireland to the ownership of Ireland and to the unfettered control of Irish destinies, to be sovereign and indefeasible”. On 6 December 1921, following over five years of civil unrest and military conflict in Ireland, there were signed in London by representatives of Great Britain on the one hand and of Ireland on the other Articles of an Agreement for a Treaty between Great Britain and Ireland. 11   Despite and against the unequivocal provisions of the

                                            

a court might form on the matter, as to which I express no opinion, I do not think that it is open to this Committee to question the extent and application of the doctrine of sovereignty.”

9 See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (majority) at §40

“Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions. Reflecting its development and its contents, the UK constitution was described by the constitutional scholar, Professor AV Dicey, as ‘the most flexible polity in existence’ : Introduction to the Study of the Law of the Constitution, 8th ed (1915), p 87.”

 

11                                         Clause 11 of British-Irish Treaty of 1921 gave the Parliament of Northern Ireland (which sat in Stormont Castle in Belfast and which had been brought into being by the Westminster Parliament as a devolved legislature within the UK by the Government of Ireland Act 1920) one month from the date of these Acts coming into force to decide whether the territory of Northern Ireland (“as determined in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions”) should remain in, or opt out from, the Irish Free State. Stormont duly exercised its opt out, leaving the Irish Free State in control of just 26 of the 32 counties which made up the island of Ireland. So it was this


Acts of Union of 1800 British constitutional law thereby recognised that Irish sovereignty was successfully reasserted by those claiming to act for and in the name of the people of Ireland.  Ireland was transformed from being a submerged nation within an avowedly perpetual Union, to become again a distinct entity with international legal personality and capacity to enter into a Treaty with Great Britain – whose distinct legal personality as an international entity was also revived by the Irish popular action.   These international Treaty provisions were then given effect in (British) domestic law by the Westminster Parliament’s enactment of the Irish Free State (Agreement) Act 1922 and the Irish Free State Constitution Act 1922.    The provisions of these two Acts of 1922 were held to have, sub silentio, repealed the

Acts of Union 1800, 12 but the constitutional reality is that the supposedly permanent Union

                                            

decision, by a devolved Northern Ireland Parliament sitting in Belfast, which created the present United Kingdom of Great Britain and Northern Ireland.  The relationship of this newly formed United Kingdom of Great Britain and Northern Ireland with the rest of Ireland was, at least from the point of view of UK constitutional law, subsequently set out in the Ireland Act 1949 which, in Section 1(1) “recognized and declared that the part of Ireland heretofore known as Eire ceased, as from 18 April 1949, to be part of His Majesty’s dominions” but declared (and continues to declare) in Section 2(1) that “notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom”.

 

12                                       See Earl of Antrim’s Petition- House of Lords Committee of Privileges [1967] 1 AC 691 per Lord Reid at 716:

 

“I must now deal with the changes which have occurred in the constitutional position of Ireland [since the Acts of Union of 1800]. The first substantial change was made by the Government of

Ireland Act, 1920. That Act provided for there being separate Parliaments for Southern and for  Northern Ireland, but it did not destroy the unity of Ireland. In several respects Ireland was still to be treated as a whole, and  section 3 made provision for the establishment in certain events of a Parliament for the whole of Ireland. While that Act remained in force no occasion arose for the election of an Irish representative peer, but I have no doubt that it would have been proper to hold such an election had occasion arisen.    A very different position was created by the Irish Free State (Agreement) Act, 1922 (which was followed in the same year by the Irish Free State Constitution Act and the Irish Free State (Consequential Provisions) Act). It is unnecessary to do more than refer to the general effect of that Act. That part of Ireland which became the Irish Free State acquired what was commonly known as Dominion Status—the same constitutional status as Canada, Australia, New Zealand and South Africa then had— while Northern Ireland remained part of the United Kingdom. I do not think that any officer remained whose political or executive functions extended to the whole of Ireland, and there was a complete political separation between the Irish Free State and Northern Ireland which has remained. In 1949 that part of Ireland which had been the Irish Free State was declared by the Ireland Act 1949, to have ceased to be part of His Majesty’s dominions. Section 2 declared that notwithstanding that fact the Republic of Ireland is not a foreign country, but that does not appear to me to be important in this connection. 

 

As a result of these changes it appears to me to be clear that Ireland as a whole no longer exists politically. On the other hand, there has been no statutory alteration of the position of the Irish peerage or the rights of Irish peers. So if the Irish representative peers were elected to represent Ireland I cannot see how there could now be an election of a peer to represent something which no longer exists politically. A statutory provision becomes obsolete if the state of things on which its existence depended has ceased to exist so that its object is no longer attainable. Or putting it in another way, a statutory provision is virtually or impliedly repealed if a later enactment brings to an end a state of things the continuance of which is essential for its operation.

 

See too Viscount Dilhorne at 716 D-E:


between Britain and Ireland established by two Parliaments in 1800 (which the dissolved and united themselves into a new unitary Imperial Parliament of Great Britain and Ireland) was unilaterally abrogated by those representing the people of Ireland asserting and exercising Ireland’s popular sovereignty.   It is of note too that the Statute of Westminster 1931 was subsequently passed by the UK Parliament precisely to try and take the legal and political heat out of the Irish Free State’s dismantling of its continued ties to Britain (notably its unilateral abolition of the previous right of appeal to the Privy Council). 13  It culminated in the Irish Free State’s enactment in 1937, without any reference to the UK, of the Irish Constitution or Bunreacht nan hÉireann, which still after amendment, is the foundational constitutional document of the Irish Republic.   Dicey’s “theory” of the constitution – in what he regarded as England’s Imperial Parliament was supreme in everything apart from its inability to bind its successors – is simply unable to account for the many constitutional developments subsequent to his death with England’s radical de-imperialisation over the first half of the 20th century (recognised in the Statute of Westminster 1931) and in the second half of the 20th century development of the Union as a whole into a post-Nuremberg democracy bounded by legally enforceable fundamental rights (a development seen in the growing recognition by judges in England of the existence of specifically “constitutional instruments” and fundamental constitutional principles 14 other than simply the

                                            

“When the Free State and Northern Ireland were created, Ireland as an entity ceased to be part of the United Kingdom. It necessarily follows that there was no territory called Ireland to be represented in the United Kingdom Parliament and thereafter it was in my opinion no longer possible to elect an Irish peer to sit and vote in the House of Lords on the part of Ireland for to do so would have meant the election of peers to represent a territory which had ceased to exist as a political entity and as part of the United Kingdom.   For these reasons, in my opinion that part of the Union with Ireland Act which provided for the election of Irish peers to the House of Lords must be regarded as having become spent or obsolete or impliedly repealed in 1922.”

 

13                                       See Moore v. Attorney General of the Irish Free State [1935] AC 484 in which the Privy Council acknowledged the validity of the abolition of the prerogative right of appeal to His Majesty in Council from the Supreme Court of the Irish Free State by the Irish Free State Constitution (Amendment) Act, 1933.    The Privy Council reasoned that the Treaty and Constituent Act scheduled to the Irish Free State Constitution Act,1922 (being parts of an Imperial Act) formed parts of the statute law of the United Kingdom. It considered that before the passing of the Statute of Westminster 1933 it was not competent for the Irish Free State Parliament to pass an Act abrogating the Treaty, because the Colonial Laws Validity Act 1865  forbade a Dominion Legislature to pass a law repugnant to an Imperial Act. The effect of the Statute of Westminster 1933 was, however, to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act 1865. The Irish Free State Legislature could therefore henceforth (as a matter of UK constitutional law) pass Irish Acts repugnant to an Imperial Act.

 

14                                       For example in R (Buckinghamshire County Council) v Secretary of State for Transport: re HS2 [2014] UKSC 3 [2014] 1 WLR 324 [2014] PTSR 182  per Lord Neuberger of Abbotsbury and Lord Mance at § 207: “207 The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707.  The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list.  The common law itself also recognises certain principles as fundamental to the rule of law.”

 

despotism of Parliament. 15)    Even the English courts have recognised this, as Lord Denning MR’s observations in Blackburn v. Attorney General [1971] 1 WLR 1037 in rejecting a claim that the entry of the UK into the European Economic Community contravened the Diceyan constitution, make plain (at 1040 E-G.):

“We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931, which takes away the power of Parliament to legislate for the Dominions. Can anyone imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics. It is as well to remember the remark of Viscount Sankey L.C. in British Coal Corporation v. The King [1935] AC 500, 520 : 

‘… the Imperial Parliament could, as matter of abstract law, repeal or disregard section 4 of the Statute of Westminster.17 But that is theory and has no relation to realities.’”

                                            

15                                        Although in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 the majority decision at § 43 states:

“…Parliamentary sovereignty is a fundamental principle of the UK  constitution, as was conclusively established (sic) in the statutes referred to in § 41 above [the Bill of Rights 1689 and the Act of Settlement 1701 in England and Wales; the Claim of Right 1689 in Scotland; and the Acts of Union 1706 and 1707 in England and Wales and in Scotland respectively; and the Acts of Union 1800 in Britain and Ireland] It was famously summarised by Professor Dicey as meaning that Parliament has 

‘the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’ p 38.

But it cannot logically be the case that Parliament can enact by statute that it is sovereign.   Instead as Laws J (as he then was) recognised in R v Lord Chancellor Ex p Witham [1998] QB 575 the constitutional principle of the of the sovereignty of Parliament lies in the common law, created and affirmed by the judges, not established by Parliamentary fiat.  He notes (at 581D-E)

“In the unwritten legal order of the British state, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.”

 

Similarly in Thoburn v. Sunderland City Council [2001] EWHC Admin 934 [2003] QB 151 Laws LJ (as he had now become) observed (at §§ 59-60) 

“59. … The conditions of Parliament’s legislative supremacy in the United Kingdom necessarily remain in the UK’s hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle.

 

60 The common law has in recent years allowed, or rather created exceptions to the doctrine of implied repeal: a doctrine which was always the common law’s own creature. There are now classes or types of legislative provision which cannot be repealed by mere implication. These instances are given, and can only be given, by our own courts, to which the scope and nature of Parliamentary sovereignty are ultimately confided.”

 

17    Section 4 of the Statute of Westminster 1931 provides that:

“No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof”.

 

2.6 The essential importance of understanding the UK constitution as being founded on principles of democracy enforceable by the courts, and the fundamental link between democracy and accountability, was most recently reaffirmed in the unanimous 11 judge decision of the UK Supreme Court in Cherry v Advocate General [2019] UKSC 41, 2020 UKSC 1.   Dicey is notable by his complete absence from the unanimous judgment of the 11 bench UK Supreme Court sitting en banc for the second time.  The Cherry decision may instead be dubbed “The Silence of the Diceyans”.   Instead of Dicey, the court refers to constitutional principles and treats these as fundamental legal standards which may be enforced by the courts.18   Importantly the UKSC decision in Cherry was argued before the court on the basis, in part, of the distinct Scottish constitutional tradition.19  

                                            

18   Cherry v Advocate General [2019] UKSC 41, 2020 UKSC 1 at §§ 41, 44-46 (emphases added):

41. Two fundamental principles of our constitutional law are relevant to the present case. The first is the principle of parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the government, must comply.   However, the effect which the courts have given to parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the seventeenth century, the courts have protected parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of parliamentary sovereignty.   To give only a few examples, in the Case of Proclamations (1611) 12 Co Rep 74 the court protected parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, in Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508, the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative. More recently, in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative, and was not deflected by the fact that the Government had failed to bring the statute into effect. As Lord Browne-Wilkinson observed (p 552) in that case,

‘[t]he constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.’

44. It must therefore follow, as a concomitant of parliamentary sovereignty, that the power to prorogue cannot be unlimited.…   45.   How, then, is the limit upon the power to prorogue to be defined, so as to make it compatible with the principle of parliamentary sovereignty?.  46 The same question arises in relation to a second constitutional principle, that of parliamentary accountability, described by Lord Carnwath in his judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at § 249 as no less fundamental to our constitution than parliamentary sovereignty

 

19   Cherry may in this regard be contrasted with R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 the majority decision in which proceeded on a remarkably historically uninformed (indeed historically inaccurate) summary account of the development of the English constitutional tradition within the Union, noting at §41:

“41 Originally, sovereignty was concentrated in the Crown, subject to limitations which were illdefined and which changed with practical exigencies. Accordingly, the Crown largely exercised all the powers of the state (although it appears that even in the 11th century the King rarely attended meetings of his Council, albeit that its membership was at his discretion).   However, over the centuries, those prerogative powers, collectively known as the Royal Prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th century, the great majority of what had previously been prerogative powers, at least in

 

2.7 This Scottish tradition – since at least the Declaration of Arbroath of 1320 CE – emphasises the democratic fundamentals of the constitution and in particular that sovereignty rests in the people, who conditionally cede certain powers to the organs of government in order to allow the better functioning of society governed in good order by law. 20  Democracy as a political and constitutional ideal is not simply about the business of government being interrupted from time by occasional elections.  Instead, it is a statement about where sovereignty ultimately rests in a polity, that is to say in the people, the demos. The demos may for the good of society conditionally (but never irrevocably) cede powers to those it selects to govern for the good order of society.  But what marks out a democracy – and what distinguishes it from tyranny or despotism – is that those who have been duly permitted by the people to govern remain accountable to the people for their governance.   

                                            

relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the Government more generally) and the judiciary (the judges).   It is possible to identify a number of seminal events in this history, but a series of statutes enacted in the 20 years between 1688 and 1707 were of particular legal importance. Those statutes were the Bill of Rights 1689 and the Act of Settlement 1701 in England and Wales, the Claim of Right 1689 in Scotland, and the Acts of Union 1706 and 1707 in England and Wales and in Scotland respectively. (Northern Ireland joined the United Kingdom pursuant to the Acts of Union 1800 in Britain and Ireland (sic))

 

This last parenthetical sentence should however more accurately have read:

“In December 1922 Northern Ireland opted out from the Irish Free State and re-joined Great Britain, to create the (new state) of the United Kingdom of Great Britain and Northern Ireland”.

 

But this, of course, would have highlighted that the current Union polity is less than 100 years old.

20 The Declaration of Arbroath 1320 makes two important constitutional claims about kingship and popular sovereignty in Scotland. First, it notes, that

“it was the due consent and assent of us all have made Robert Bruce our Prince and King”. 

Secondly, it asserts that the continued kingship of Robert Bruce was conditional on his maintaining the integrity and independence of the Scottish nation, for

“[I]f he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours and make some other man, who was well able to defend us, our King”.

These constitutional claims are reflecting contemporary political thought notably the works of Marsilius of Padua. In his work of 1324 CE, Defensor Pacis, Marsilius relied on Aristotle’s Politics to reclaim a view which saw political power and authority as being conferred from the bottom up, by and from the people. Among the conclusions reached by Marsilius (noted as Statements 6, 8, 9, 11, 13 in  Defensor Pacis, Part III, ch. ii; in Goldet, Monarchia Sancti Romani Imperii, 11, pp. 309 ff., translated in Oliver J. Thatcher, and Edgar Holmes McNeal, eds., A Source Book for Medieval History, (New York: Scribners, 1905), pp. 317-324) were that:

          the whole body of citizens or its majority alone is the human ‘legislator’

          the ‘legislator’ alone or the one who rules by its authority has the power to dispense with human laws

          the elective principality or other office derives its authority from the election of the body having the right to elect, and not from the confirmation or approval of any other power;

          there can be only one supreme ruling power in a state or kingdom”;

          no prince, still more, no partial council or single person of any position, has full authority and control over other persons, laymen or clergy, without the authorization of the ‘legislator’

 

2.8 In a constitutional democracy governed by the rule of law all power is limited, and it is the task of the courts to explain and set out those boundaries and rule on when and if powers granted under the constitution are being abused.21   In a democracy the courts, including this court, gain their legitimacy not by the judges being elected but by acting as guardians of the fundamentally democratic nature of our constitution by ensuring both that those to whom powers have been conditionally ceded by the people act only within the limits of those powers and in accordance with the purposes for which the people has conditionally ceded these powers, but also to ensure that that principle of accountability to the people is always and at all time respected by those who would exercise powers within our polity, within as members of the government or as members of the legislature. [6] Both are equally subject to the principle of democratic accountability enforced, where necessary – as it is in this case – by the courts.[7]  Although classically the fundamental nature of the rule of law has often been

21 Cherry/Miller [2019] UKSC 41 [2020] AC 373, 2020 SC (UKSC) 1 at § 38:

“38 In principle, if not always in practice, it is relatively straightforward to determine the limits of a statutory power, since the power is defined by the text of the statute. Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie. Since the power is recognised by the common law, and has to be compatible with common law principles, those principles may illuminate where its boundaries lie. In particular, the boundaries of a prerogative power relating to the operation of Parliament are likely to be illuminated, and indeed determined, by the fundamental principles of our constitutional law.”

 

expressed in the phrase “be you never so high, the law is above you” 24 in a constitutional democracy the relevant principles are better expressed as “be you never so high, the people are above you” and “be you never so low, the law will protect you”.   That is because a democracy holds as  self-evident truth and fundamental article of political faith all are created equal and all will receive equal treatment before, and the equal protection of, the law.   As Baroness Hale put it in Ghaidan v. Godin Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §132:

“Democracy is founded on the principle that each individual has equal value.   Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. …[I]t is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not.” 


What is the relevant demos in this case ?

 

2.9 That there are distinct political demoi within the United Kingdom is recognised and built into the very structure of the United Kingdom constitutional by the devolution statutes.  All these devolution statutes have been recognised by the courts as being “constitutional statutes” which have modified the UK constitution as a whole (and not simply that constitution as it applies in or to the Celtic fringe)25 and which are immune from implied

                                            

strengthened inexorably since Lord Hailsham warned of its dangers. This was the context in which he said in § 102 that the Supreme Court might have to consider whether judicial review or the ordinary role of the courts was a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons could not abolish.”

 

24   See Gulati v MGN Ltd [2015] EWCA Civ 1291 [2017] QB 149 per Arden LJ (as she then was) at § 106:

“The principle of the rule of law is clear: in the words of Thomas Fuller, quoted by Lord Denning

MR in Gouriet v Union of Post Office Workers [1977] QB 729, 762, reversed [1978] AC 435, 

Be you [n]ever so high, the law is above you’.”

 

25    See for example:

          R v HM Advocate [2002] UKPC D 3, 2003 SC (PC) 21, in which Lord Rodger of Earlsferry noted that: “the Scotland Act 1998 is a major constitutional measure which altered the government of the United Kingdom” and that: “in enacting a constitutional settlement of immense social and political significance for the whole of the United Kingdom, [the UK] Parliament has itself balanced the competing interests of the Government of the United Kingdom, of the Scottish Executive, of society and of the individuals affected.” 

 

          Somerville v. Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45 (in which I acted and appeared as senior counsel for the appellants) where Lord Mance (at § 169) referred to the Scotland Act 1998  and the Human Rights Act 1998 (HRA) as “essential elements of the architecture of the modern United Kingdom”.

 

          H v Lord Advocate [2012] UKSC 24, 2012 SC (UKSC) 308 Lord Hope spoke of the Scotland Act as a UK constitutional statute the provisions of which were immune from implied repeal by subsequent statutes and observed (at § 130) that: the fundamental constitutional nature of the settlement that was achieved by the Scotland Act 1998 … in itself must be held to render it incapable of being altered otherwise than by an express enactment.”

 

repeal, at least.[8], which have been recognised by the courts to be “constitutional statutes” affecting the constitution of the whole of the United Kingdom and are not to be confined as understood as applying in and only to the Celtic fringes surrounding England.   Section 63A of the Scotland Act 1998 is in the following terms:


“63A Permanence of the Scottish Parliament and Scottish Government (1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.

(2)               The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

(3)               In view of that commitment it is declared 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.

2.10           Now from a Diceyan viewpoint Section 63A(1) SA is a meaningless provision, because for Dicey the essential notion of the sovereignty of the Union Parliament was, as he saw it, that it could not bind its successors. (which, paradoxically, is the necessary condition of its absolute sovereignty).[9] On the Diceyan analysis, therefore, the UK constitution exists in a perpetual present. It has no past, and no future. It is then wholly contingent on the political, and is unbound by the legal. Ultimately the UK constitution can, for Dicey, be nothing more than a description of whatever any UK Government which can command a working majority in the Westminster Parliament feels like doing or permitting on any particular day. For Dicey, the UK constitution can have no prescriptive force.  But of course this court is faced with the constitutional principle that Parliament does not legislate in vain and that when it include provisions in statute it intends them to have binding legal effect, to be laws.    As Lord Reed observed in RM v Scottish Ministers [2012] UKSC 58, 2013 SC (UKSC) 139 at § 34: 

“Parliament is not given to idly passing legislation. As Viscount Simon LC observed in Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 (p 1022), Parliament would legislate only for the purpose of bringing about an effective result. Its intention can ordinarily be taken to be that an enactment, when brought into force, will not be futile but will have practical consequences for the life of the community.”

2.11            Further given, as we have seen, that Dicey’s constitutional theory is, and can only be descriptive of the constitution, when the constitution changes, so too must the theory describing it.  Section 63A(1) SA 1998 is clearly saying as a matter of law, unequivocally, that so long as there continues to exist a United Kingdom of Great Britain and Northern Ireland, then the Scottish Parliament and the Scottish Government as defined ad limited under and in terms of the Scotland Act 1998 (a constitutional statute) will be a permanent part of the United Kingdom’s constitutional arrangements.   This provision cannot be dismissed as the simply statement of a legally enforceable constitutional convention, or as statement in legislation of a previous UK Government’s political commitment.  It is an unequivocal provision of law in a primary constitutional statute.28   Although the “Scottish People” referred to in Section 63A(3) are not further defined within the four corners of the SA 1998, it is clear from the context of this provision is that it is intended as a statement of democratic intent and a recognition of popular sovereignty, sovereignty resting in the Scottish people, all in accordance with the long Scottish constitutional tradition to this effect (which shows too that the Union Parliament in enacting this provision is again expressly repudiating the former Diceyan Anglo-centric analysis of the UK constitution).

2.12           Although, in enacting the Scotland Act 1998, the devolved Scottish Parliament was undoubtedly established by the Union Parliament as a body to which decision-making powers had been delegated, that does not entail that the Scottish Parliament therefore owes its legitimacy to the Union Parliament (or indeed the UK Government).  The Scottish Parliament was established as a democratically elected legislature with power to make

                                            

28         In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 in holding the Sewel convention to be a purely political norm and not a justiciable legal rules to be interpreted and enforced, by the courts. Instead, said the court “the purpose of the legislative recognition of the [Sewel] convention was to entrench it (sic) as a convention” (§ 149) but that “it is well established that the courts of law cannot enforce a political convention” (§ 144) and that “judges therefore are neither the parents nor the guardians of political conventions; they are merely observers” (§ 146)  concluding:

“151 In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel convention [that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the relevant devolved Parliament] has an important role in facilitating harmonious relationships between the Union Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.”

 

These remarks insofar as they might be thought to refer to constitutional convention or constitutional principles generally now have to be read subject to the decision in Cherry/Miller 2 where the full 11 UKSC bench unanimously held constitutional principles (notably the principle of accountability) to be legally enforceable.

 

general laws in Scotland.  It is directly democratically accountable to the people of Scotland, over whom it exercises its legislative power.29  The primary mechanism to affirm and maintain the democratic accountability of a democratic legislature consists in regular periodic elections (under a franchise which aspires so far as practicable to universal and equal suffrage) to determine the legislature’s membership and make-up.  On specific issues of political or constitutional moment, however, it might be more appropriate for the legislature to make provision for direct consultation with, and voting by, the people on a specified single issue by way of a referendum.  Regular elections and occasional referendums may be seen to be among the measures required to ensure continued democratic accountability in and legitimacy of a polity. 

2.13 Against that constitutional background, it would be surprising indeed if the Scottish Parliament were deprived of the power to hold referendums in Scotland.    But the Scottish Parliament does indeed have power under the Scotland Act 1998, to hold referendums.  This is plain from the terms of Sub-paragraph B of Paragraph B3 Elections in Part 2 – Specific Reservations of Schedule 5 to the 1998 Act.  The question as to whether the Scottish Parliament can legislate specifically for a referendum on Scottish independence then depends for its answer on the court’s construction and application of other provisions of the 

Scotland Act 1998 30 interpreted and applied against the background of relevant common

                                            

29         As Lord Hope observed in AXA v. Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 at § 49:

 

“The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate.   While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances. As Lord Bingham of Cornhill said in R (Countryside Alliance and ors) v Attorney-General and anr [2007] UKHL 52; [2008] 1 AC 719 (§ 45) the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament.”

 

30         The immediately relevant provisions of the Scotland Act 1998 (SA 1998) include (emphases added): – Section 37 SA 1998:

 

“Acts of Union

The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act.”

 

  paragraphs 1(1) and 1(2)(a) of Schedule 4 SA 1998: “1.—

(1)                An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions.

 

(2)                The provisions are— (a) Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as they relate to freedom of trade

law principles of constitutional law, particularly that of accountability to the demos.  Looking specifically at paragraph 1(2)(a) in Schedule 4 SA 1998 and Paragraph 1(b) in Part 1 of Schedule 5 SA 1998 in order to allow for them to have distinct meanings and for effect to be given to both (rather than have the specificity of the former subsumed in the generality of the latter) a narrower approach than ordinary language might otherwise indicate has to be given to the phrase “legislation which ‘relates to’ the Union of the Kingdoms of Scotland and England.”    Rather than adopt an ordinary language approach, the Scotland Act 1998 clearly uses the phrase “relates to reserved matters” in defining the limits on the legislative competence of the Scottish Parliament as a technical term of art. 31  And because the effect of Section 29(2)(b) SA is to prevent the Scottish Parliament from enacting any legislative provision which “relates to” any of the reserved matters listed in Schedule 5 at all (rather than make such Scottish legislative provision invalid solely to the extent of any inconsistency with specific UK enactments and protected legal rules), the courts have in practice applied a “suitably restrained … careful and restricted” construction as to when a devolved Scottish provision might be said to “relate to” a reserved matter. 32    Thus in Advocate General’s

                                            

 

  paragraph 1(b) of Schedule 5 SA 1998:

“(1)  The following aspects of the constitution are reserved matters, that is— …  (b) the Union of the Kingdoms of Scotland and England”

 

31    Section 29(3) SA says that

“the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”  

 

32   In Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40 Lord Kerr observed at §§ 159-162:

 

“159. … [T]he construction to be placed on the expression ‘relates to reserved matters’ must be suitably restrained. If, in every instance where a provision of the Scottish Parliament touched on a reserved matter, it was to be considered to relate to a reserved matter, subsection (4) would not be needed. The phrase needs a more careful and restricted application, therefore.

 

160.            Guidance as to the extent of the restriction is provided by the next component part of Section 29(3) SA. The resolution of the question whether a particular provision relates to a reserved matter is to be determined by reference to the purpose of the provision. One is immediately thereby drawn to an examination of the objective of the legislation and of the particular provision within it.

 

161.             Before dealing with the result of that examination, it is useful to note the next component part of Section 29(3) SA. It is to the effect that the determination (by reference to its purpose) whether an Act of the Scottish Parliament relates to a reserved matter is to be conducted having regard to ‘(among other things) … its effect in all the circumstances’.   It seems to me obvious that the way in which the subsection is structured signifies that the effect of the provision is subordinate to its purpose in the inquiry as to whether it relates to a reserved matter. Indeed, the assessment of the effect of the provision is directly linked to the search for its purpose. This is unsurprising. As Lord Brown pointed out in the course of argument, one will customarily expect that the purpose of a particular provision is to bring about a desired effect.

 

162.             The ‘other things’, apart from the effect of the provision, which are to be taken into account in ascertaining its purpose are not specified in Section 29(3) SA. Counsel on behalf of the appellant, Mr Miller, accepted (sensibly and correctly, in my view) that these would include

 

Reference on the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64, 2019 SC (UKSC) 13 the UKSC ruled that a Scottish provision which purported to invalidate Brexit related to subordinate legislation laid by Ministers of the Crown before the Union Parliament to the extent that this legislation contained devolved provision for Scotland and had not been consented to the Scottish Ministers did not “relate to … the Parliament of the United Kingdom” as reserved by paragraph 1(c) of Pt I of schedule 5 to the Scotland Act 1998. 33   Applying the approach mandated by Section 29(3) SA, it may be said that the purpose of any independence referendum legislation 34 is one of consulting the

                                            

statements by those responsible for the legislation which purported to identify the reasons for its enactment.”

 

33   In Advocate General’s Reference on the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64, 2019 SC (UKSC) 13 the court noted (at §§ 62-4):

“62 … [I]f the Scottish Parliament legislates in order to give effect in Scotland to a policy which has been rejected by the Union Parliament, it does not, as a general rule, thereby infringe the reservation created by § 1(c) [of Schedule 5 SA]. Neither the purpose nor the effect of such legislation impinges upon the constitutional functions, powers or privileges of Parliament. … [T]he fact that sec 17 of the Scottish Bill gives effect to a policy rejected by the Union Parliament does not mean that it relates to the reserved matter of Parliament.

 

63.                Nor are we persuaded that sec 17 impinges upon the sovereignty of Parliament. Section 17 does not purport to alter the fundamental constitutional principle that the Crown in Parliament is the ultimate source of legal authority; nor would it have that effect. Parliament would remain sovereign even if sec 17 became law. It could amend, disapply or repeal sec 17 whenever it chose, acting in accordance with its ordinary procedures.

 

64.               The preferable analysis is that although sec 17, if it became law, would not affect parliamentary sovereignty, it would nevertheless impose a condition on the effect of certain laws made by [the UK] Parliament for Scotland, unless and until [the UK] Parliament exercised its sovereignty so as to disapply or repeal it. It would therefore ‘affect the power of the Parliament of the United Kingdom to make laws for Scotland’, and so modify sec 28(7) of the Scotland Act 1998.”

34   Such as that legislated for in the Scottish Independence (Scotland Act 2013 which provided, so far as relevant, in Section 1 as follows:

“1 Referendum on Scottish independence

(1)   A referendum is to be held in Scotland on a question about the independence of Scotland.

(2)  The question is— “Should Scotland be an independent country?””

The 2013 independence referendum was, of course, passed by the Scottish Parliament after the UK Government/Privy Council had, by the Scotland Act 1998 (Modification of Schedule 5) Order 2013 (SI 2013/243), made the following (time limited) amendment to the SA 1998 

“In Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations), after paragraph 5 insert—

‘5A.— (1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.

people of Scotland – the demos identified in Section 63A(3) SA as being represented in, and by, the Scottish Parliament – about the possibility of future constitutional change in the UK, to be effected constitutionally  Such formal consultation by the legislature of the people of Scotland may be said to be fully in accordance with the constitutional principle of democratic accountability to which the Scottish Parliament (as much as the Union Parliament) is subject.   A case may even be made out that – at a time of fundamental constitutional change caused by the UK’s departure from the European Union – such consultation may even be said to be required of the legislature in its duty to maintain the trust and confidence of the people to which it is answerable, from which trust it derives its legitimacy.   The withdrawal of the UK as a Member State of the European Union necessarily results in fundamental diminution in the rights of those who make up the Scottish demos – both citizens of other EU countries lawfully resident in Scotland (who will, as a result of the Brexit decision, lose the ability to claims their rights as EU citizens against UK authorities and will revert to the status of “foreigner”, here under sufferance rather than as of right) and of UK citizens resident in Scotland (who will lose all the rights associated with EU citizenship and be unable to claim these not only vis a vis the authorities in the UK but also against the authorities in all the remaining 27 EU member States).

2.14 Further and in any event, it cannot be said that merely legislating to hold a referendum on Scottish independence has, or will have, any effect whatsoever on the Union.   The result of any such referendum might be that the majority vote in favour of one of the maintenance of the constitutional status quo and a reaffirmation of the Union.  For the Scottish Parliament to legislate for a referendum on the question of whether Scotland should be an independent country does not then, logically or politically, involve any claim that the Scottish Parliament has the competence, or indeed the intention to dissolve the Union.   The perhaps unspoken assumption being made by the UK Government in arguing that an independence referendum legislated for by the Scottish Parliament would necessarily be ultra vires appears to be their apprehension that the real purpose of such a referendum is to try to provide a political cover for an unilateral declaration of independence (UDI) by the Scottish Parliament from the UK (perhaps along the lines of the 1916 Proclamation of the Irish Republic which triggered the

                                            

(2)  The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.

(3)  The date of the poll at the referendum must be no later than 31st December 2014.

(4)  There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.’

Irish War of Independence and the subsequent Irish Civil War.)    Whatever may be the position in public international law 35, it can, however, readily be agreed that  as a matter of

                                            

35    In the International Court of Justice’s Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (2010) ICJ Reports 2010, p. 403 the court observed as follows:

“55. While many of those participating in the present proceedings made reference to the opinion of the Supreme Court of Canada in Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada ([1998] 2 SCR 217, the Court observes that the question in the present case is markedly different from that posed to the Supreme Court of Canada.  The relevant question in that case was:

“Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”

 

56. The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law.  The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act — such as a unilateral declaration of independence — not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.

79. … During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation … A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.

Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo.

 

83.               The Court considers that it is not necessary to resolve these questions in the present case. The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law. Debates regarding the extent of the right of self-determination and the existence of any right of “remedial secession”, however, concern the right to separate from a State. As the Court has already noted (see §§ 49 to 56 above), and as almost all participants agreed, that issue is beyond the scope of the question posed by the General Assembly …

 

UK constitutional law, 36 UDI is beyond by the powers of the Scottish Parliament: paragraph 1(2)(a) in Schedule 4 SA undoubtedly prevents the Scottish Parliament from legislating to modify Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as they relate to freedom of trade.  In addition, Paragraph 1(b) in Part 1 of Schedule 5 to the 1998 Act excludes the possibility of the Scottish Parliament lawfully enacting legislation unilaterally repealing or dissolving the Union of the Kingdoms of Scotland and England.   But apart from those two specific prohibitions against the Scottish Parliament modifying freedom of trade within the Union and/or purporting itself to dissolve the Union, the Scottish Parliament is free to pass legislation on matters otherwise within its legislative competence, even if this legislation may be said to have incidental legal effects – or apprehended or even foreseeable political effects – on the Union.  In particular, if the avowed purpose of the Scottish Parliament in legislating for a further independence referendum is simply to consult the people of Scotland only about possible future constitutional change to be effected constitutionally then this may be said to be predicated on an acceptance that any fundamental change in the terms of the current Union between the Kingdoms of Scotland and England is a matter ultimately for the Union Parliament to

                                            

84.               For the reasons already given, the Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law.”

 

36   Cf Madzimbamuto v. Lardner-Burke [1969] 1 AC 645, JCPC per Lord Reid at 723F-724A-C, 725E-G:

“With regard to the question whether the usurping government can now be regarded as a lawful government much was said about de facto and de jure governments.   Those are conceptions of international law and in their Lordships’ view they are quite inappropriate in dealing with the legal position of a usurper within the territory of which he has acquired control. As was explained in Carl Zeiss Stijtung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853 when a question arises as to the status of a new regime in a foreign country the court must ascertain the view of Her Majesty’s Government and act on it as correct. In practice the Government have regard to certain rules, but those are not rules of law. And it happens not infrequently that the Government recognise a usurper as the de facto government of a territory while continuing to recognise the ousted Sovereign as the de jure government. But the position is quite different where a court sitting in a particular territory has to determine the status of a new regime which has usurped power and acquired control of that territory. It must decide. And it is not possible to decide that there are two lawful  governments at the same time while each is seeking to prevail over the other.   It is an historical fact that in many countries—and indeed in many countries which are or have been under British Sovereignty—there are now regimes which are universally recognised as lawful but which derive their origins from revolutions or coups d’état. The law must take account of that fact. So there may be a question how or at what stage the new regime became lawful.  

….

If the legitimate Government had been driven out but was trying to regain control it would be impossible to hold that the usurper who is in control is the lawful ruler, because that would mean that by striving to assert its lawful right the ousted legitimate Government was opposing the lawful ruler.  In their Lordships’ judgment that is the present position in Southern Rhodesia. The British Government acting for the lawful Sovereign is taking steps to regain control and it is impossible to predict with certainty whether or not it will succeed. Both the judges in the General Division and the majority in the Appellate Division rightly still regard the ‘revolution’ as illegal and consider themselves sitting as courts of the lawful Sovereign and not under the revolutionary Constitution of 1965. Their Lordships are therefore of opinion that the usurping government now in control of Southern Rhodesia cannot be regarded as a lawful government.”

  

make (doubtless advised by the terms of discussion, negotiations and any agreement which might be reached between the Scottish authorities and the UK Government). [10]   The 1707 union between Scotland and England having been founded, like the UK’s membership of the EU, by an agreement is one which in principle, and even as a matter of the purely English constitutional law tradition, may be dissolved by agreement.  This, at least, seems to be the position taken by Blackstone in his Commentaries on the Laws of England (1765) (editor: T. M. Cooley, Callaghan, 1899) at 88:

“That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be ‘fundamental and essential conditions of the union’.” 


Conclusion

 

2.15 Against the foregoing background the Lord Ordinary was duty bound to give an authoritative legal ruling in the form of a declarators to answer to the substantive legal/constitutional question issue raised in the action.  In declining to give any answer and refusing to pronounce decree de plano in favour of the pursuer (instead uphold a number of the spurious and ill-founded preliminary issues argued for by the defendants, the Lord Ordinary erred in at least the following respects.

3. GROUNDS 1 AND 2 AND 3 THE LORD ORDINARY ERRED IN LAW IN DISMISSING THIS ACTION AS ACADEMIC AND/OR AS HYPOTHETICAL AND/OR AS PREMATURE AND/OR ON THE PURSUERS LACK OF STANDING

3.1 The right to obtain a ruling as to the current state of the law is an aspect of the fundamental constitutional right of access to the court.  This court was clear in Wightman that access to the court for such purposes is the constitutional default position: “the principle of access to justice dictates that, as a generality, anyone, who wishes to do so, can apply to the court to determine what the law is in a given situation”.  [11]  Denial of access to justice, or a refusal of the court to answer a question of law put to it, is the exception which has to be shown to be justified in all the circumstances.   That justification has not been made out in the present case and the Lord Ordinary misdirect herself and erred in law in refusing to answer the substantive question of law which this action raised. 

3.2 The legal question raised in the action on which the court’s ruling is sought are:

          whether or not the Scottish Parliament has power to legislate for the holding of a referendum on whether Scotland should be an independent country, without requiring the consent of the United Kingdom Government, or any further amendment by the Union Parliament of the Scotland Act 1998 as it stands; and secondly

          whether or not the Scottish Government’s proposed Act of the Scottish Parliament concerning an independence referendum contains any provision which, if passed by the Parliament, would be outside its legislative competence.

3.3  Neither the UK Government and the Scottish Government want the courts to answer that question.   The UK Government and the Scottish Government are united in their desire to keep Scottish voters in ignorance as to whether or not it is already within the powers of the Scottish Parliament to legislate for another Scottish independence referendum.  These two Governments have doubtless made their own separate political calculations as to why they each think it in their respective interests to keep the voters in a state of ignorance on this point of pure law.   But these are ultimately and only political reasons.   By acceding to these two Government’s submissions as pressed by their respective law officers that the court should not answer this point of law, the Lord Ordinary has been drawn by them directly (but constitutionally impermissible) into the political sphere.    The Lord Ordinary refusal to exercise the court’s constitutional jurisdiction was ultimately for a political reason.   She declined to answer the legal question posed to the court essentially because as the Lord Ordinary put it (at § 141) if the question was answered by the court this would prevent this legal issue from being “permitted to unfold and be worked out in the political process” and would directly impact upon “political debate and campaigning in the democratic process”. 

3.4  But the separation of powers, which is the essential structural feature of our constitution,[12] is preserved only by the court fulfilling its proper constitutional role of answering question

of law put to it where (i) there is a dispute about the correct answer to the legal question on which the court’s ruling is sought and (ii) the court’s answer to this question will have a real world practical effect.   The fact that the court may be asked to give an authoritative ruling to  legal question of some political sensitivity or controversy is not a reason for the court to decline to the answer the question put before it.  It is instead precisely a reason for the court to answer the legal question, because we are in a constitutional polity which is ultimately defined by its adherence to the rule of law in which the powers of Government’s and Parliaments are limited by law.    Ours is a government of laws, not of men. 

3.5  Further we live in a polity which aspires to being a democracy – here the people rule.   The fundamental argument for the pursuer is that, in casting their votes in the forthcoming elections to the Scottish Parliament, he and his fellow voters need to be properly advised as to the existing legal position in order to be able to exercise their democratic rights in a properly informed way.  

3.6  In the present case the legal question at issue depends for its answer on the court’s construction and application of existing law, in the form of the Scotland Act 1998  and any relevant common law principles of constitutional law. 40    The answer to the legal question

                                            

law is, that is a matter for the courts, and their decision is binding on both Parliament and the government; that is an elementary application of the principle of the rule of law.

 

53. In the present case the issue is the construction and application of existing law, in the form of Art 50 of the TEU and any related general principles of EU law.  No change in the law is involved in the present proceedings, and accordingly what they seek to achieve is not a matter for Parliament. The fundamental argument for the petitioners is that, in casting their votes on the proposed withdrawal of the United Kingdom from the European Union, they should be properly advised as to the existing legal position.”

 

40 Cf R (Cart) v. Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120 per Laws LJ at §§ 37-38:

“37. … [L]egislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter’s role cannot be fulfilled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.

 

38 If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, as it seems to me, the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another.”

 

is reached on the basis of the law as it currently stands.  It does not require the court to posit any or base its decision on any possible or hypothetical future change in the existing law or constitutional principles.   Accordingly what the pursuer seek to achieve in the present proceedings is a simple answer to a straightforward legal question.  The action does not raise legal matter which implicates or compromises or undermines or involves any exercise of power by either the Scottish or Union Parliaments or by the Scottish or UK Governments. 

3.7 The only relevant exercise of power for the purposes of this action is that of the ordinary voters’ (of which the pursuer is one) right to vote.   The fundamental argument for the pursuer is that, in casting their votes in the forthcoming elections to the Scottish Parliament, he and his fellow voters wish and need to be properly advised as to the existing legal position in order to be able to exercise their democratic rights to vote in a fully properly informed way.  

3.8 Individuals are standing for election to the Scottish Parliament at the forthcoming elections on the basis of their parties’ manifesto commitment that if elected to Government they will – even in the face of the refusal of either or both the United Kingdom Government and/or the Union Parliament to allow for any further amendment of the Scotland Act 1998 – vote to enact Scottish legislation for the holding of a referendum on whether Scotland should be an independent country.    

3.9 The first question, therefore, is whether the Lord Ordinary refusal to answer the legal question before the court had the effect of frustrating or preventing the constitutional role of voters in holding the Parliament to account.   Certainly if it is established after their election that the Scottish Parliament simply does not have legislative competence to enact any such Bill, then the individuals elected on the basis of this manifesto commitment will be able to insulate from any political accountability to their voters for their failure to carry through on this promise which got them elected.   They will, instead, blame the courts or the law for limiting the powers which, they will say, the people had sought to confer on them by electing them on their manifesto.   

3.10 The refusal of the Lord Ordinary to answer the legal question posed to the court in the circumstances of this case allow for substitution of unaccountable governance in place of politically and legally responsible governance.  This has been described by the UKSC in Cherry (at § 48) as the very “antithesis of the democratic model”.    It is a recipe for constitutional confusion and instability.  It falsely sets up a disjunction between the politically mandated and the legally permitted.   It undermines and is potentially destructive of the idea and ideal of the rule of law as enforced by the courts, which is the ultimate control upon which the constitution is based. Because we are concerned with elections to a legally limited Parliament that legislature is politically accountable to the voters and legally accountable to the courts.  Accordingly the legal position in relation to this specific manifesto commitment has to be made clear prior to the election so that the essential democratic principle of the full accountability of the elected to the electors can be maintained.   If it established prior to the election that the Scottish Parliament does not (yet) have the power as a matter of law unilaterally to legislate for a further Scottish independence referendum, then the electors can exercise their voting rights in that knowledge.  Further if the Scottish Parliament does have such power then the electors can exercise their voting rights in the knowledge that those elected will be fully politically accountable for any failure or delay in passing such legislation and will not be able to pass the buck on that matter.  Maintaining clear and unequivocal political accountability in this way by giving an authoritative answer to this disputed legal question prior to the election is an essential function of the courts as guardians of the political and legal democratic constitution.

3.11 In addition to the matters set out above, there has been produced since the hearing before the Lord Ordinary a Briefing Paper by the House of Commons Library on the matter of legal issues arising out of the matter of a further Scottish independence referendum. A copy of that briefing paper will be produced to the court and it is apparent from that document that there is a live issue that is known to both governments and for which preparations have started. Both defenders attempts to suggest that this is an academic or hypothetical matter are wholly unfounded and lacking in any candour. 

3.12 Furthermore, the day after the hearing before the Lord Ordinary (of which the Scottish Ministers were aware because of the role of the Lord Advocate in these proceedings and because there are, in fact, a party to these proceedings), an interview was published with Michael Russell, the Scottish Government’s Cabinet Secretary for the Constitution, which must have been given prior to or on the day of the hearing before the Lord Ordinary, where it was reported as follows:

          “If pro-independence parties win the majority of seats in May – and almost every poll suggests they will – the SNP will “again request a Section 30 order from the UK Government believing and publicly contending that in such circumstances there could be no moral or democratic justification for denying that request””

          “However, the party makes clear even if Downing Street doesn’t consent, they will hold a referendum anyway. It will then be up to the UK Government to either “agree that the Scottish Parliament already has the power to legislate for a referendum” or “agree

the Section 30” or “take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts”.”

          “Michael Russell, the Scottish Government’s Cabinet Secretary for the Constitution told The National that the referendum should be held “after the pandemic, at a time to be decided by the democratically elected Scottish Parliament”.”

          “Russell added: “People in Scotland have the right to decide their future – not Boris Johnson. The pandemic is the overriding priority at present but when that subsides the people of Scotland must have the right to decide how best to rebuild our country. That right to choose will be central to our election campaign message. If the SNP is returned to office at the vital Scottish Parliamentary elections in May and there is a proindependence majority at Holyrood, there can be no democratic or moral justification whatsoever to deny people in Scotland their democratic right to choose a better future.””

          He promised that if Scotland “votes for a legal referendum on the 6th of May this year, that is what it will get”.

3.13 These statements are entirely at odds with the position that the Lord Advocate took before the Lord Ordinary on behalf of the Scottish Government.   There is a live issue which is disputed between the parties.  In the whole circumstances the Lord Ordinary was wrong insofar as determining that there is not currently a live dispute. In accordance with the principle set out in Wightman, the pursuer, as someone who knows he is going to have to cast a vote on an issue where there is a known ambiguity in the law and which cannot be rectified ex post facto, he is entitled to come before this court and seek a ruling on the law as it stands.  The Lord Ordinary erred in law by finding to the contrary.

3.14 The Lord Advocate says that “until a Bill has been passed by the Parliament, its text is subject to amendment, and is not fixed”. This is true, but trite. It ignores the fact that no Government Bill can be introduced unless the Scottish Government is able to claim that the Bill as to be introduced will be within the Parliament’s legislative competence: Scotland Act 1998, s.31. It is the legal accuracy of that claim that the pursuer requires to have determined by the court as a condition for his being able in a properly informed way to cast his vote in the Scottish Parliamentary elections. The pursuer has presented to this court a discrete question of law which is not dependent on the wording of any particular individual piece of draft legislation. The argument from the defenders that the question raised by the pursuer is premature until the publication of such draft legislation is a disingenuous argument and it fails to answer in any way at all the mischief that the pursuer is seeking to remedy – namely, having a known dispute resolved in advance of a vote which cannot be reversed if and when the Scottish Government’s position on the law is wrong but that is not known about until after the election.

3.15     At paragraph 138 of the court’s opinion the Lord Ordinary posits an unsound floodgates argument to the effect that 

“there is in theory no limit to the number of issues about which politicians might make proposals in the lead up to elections, and in relation to which voters, or some voters, might be in more or less doubt as to the potential for their lawful execution. It does not follow that advice from the court is needed about them to permit voters to exercise their democratic rights.”   

But of course this case is not dealing with theory, but with actuality.   The Lord Ordinary fails to have proper regard to the effect that it is this question of law and only this question of law which the Scottish Government has made the election issue. This is not a question about the internal practices and procedures of the legislature when considering draft legislation. This is a fundamental and straightforward question of vires.  Does this Parliament have, or not have, the power to legislate for an independence referendum under the law as it stands.   That is not a question of political judgment or calculation.  It is  a pure issue of law.    And the giving of an authoritative answer to that question is not only within the sole and exclusive jurisdiction of this court but it also, in all the circumstances, its constitutional duty to give its answer in this action and at this time.

3.16 The claim by the Lord Advocate and the Advocate General (which the Lord Ordinary appears to have accepted), that an ordinary citizen and voter such as the pursuer in this action who seeks clarification of a point of law on the basis of which he is being asked to cast his vote is in fact “someone who interferes in something with which he has no legitimate concern” is startling in its anti-democratic nakedness. It is not a proposition to which this court can or should assent.   The fact is that the pursuer’s democratic rights as a voter can only properly be exercised against the background of an authoritative ruling and judgment from this court on this legal question as to whether or not the Sottish Parliament does indeed have the legislative competence currently claimed for it by the First Minister on behalf of the Scottish Government, and the Scottish National Party.  

3.17 The questions for the court in determining the pursuer’s standing to bring these proceedings are therefore: (i) is the declarator designed to achieve a practical result and (ii)

is the legal question posed in dispute. Given that the answer to both of those questions is in the affirmative, the action is neither hypothetical not academic and the pursuer has title and interest to seek to have them granted by this court.   Had she properly directed herself in law both of those questions would have been answered in the affirmative by the Lord Ordinary. 

Her findings to the contrary represents an error of law.  

3.18 For this court similarly to uphold the preliminary pleas proffered by each of the defendants and refuse to consider and rule on the substance of the matter raised in this action would amount to a dereliction by the court of its constitutional duties within a democratic polity. This is because this court would thereby be made complicit in the political calculation by both the UK and Scottish Governments that it suits these government’s (and their constituent parties’) respective political interests for the pursuer, and every other individual with a right to vote in the Scottish May 2021 Parliamentary election, to be kept in a state of ignorance (which is otherwise eminently remediable by the courts) as to the true impact and consequences in law and for the constitution of their vote.  

3.19 In Wightman and again in Cherry the First Division reiterated the essential role which courts play in a democracy in clarifying the law on issues of constitutional importance in order to allow the machinery of democracy properly to function. That is what is at issue and at stake in the present action.  As a voter in the forthcoming election to the Parliament the pursuer is, with his fellow voters, the relevant “decision-maker” as the legitimacy of the Parliament rests on his participation, along with his fellow voters, and it is to these voters that the Sottish Parliament and through it the Scottish Government is accountable.  In all the circumstances these voters, among them the pursuer, have a legal and enforceable constitutional right to be authoritatively and definitively advised – on application to the courts – of the true legal position before deciding whether and how to cast their votes in the May 2021 election. It is only when the legal position by a decision of this court is clarified on this issue in these proceedings that the pursuer, and his fellow electors, can exercise their democratic rights and responsibilities as voters in a properly informed way.  For all of those reasons, among others, it is beyond question that the pursuer has standing to bring these proceedings before this court. The Lord Ordinary’s finding to the contrary is premised on an error of law and should be reversed by this court. 

3.20 Thereafter, given that this is a pure question of law and the answer to the legal questions posed by the pursuer are required as a matter of urgency, this court should grant the declarator first sought by the pursuer. The pursuer’s positive case in support of his conclusions is set out at section 3 of the note of argument that was before the Lord Ordinary. The Lord Ordinary was wrong not to provide her view on that legal matter and this court should now do so in her place. Absent their irrelevant attempt to have this case dismissed without consideration of the substantive legal question raised by it, the defenders raise no other substantive defence in their pleadings to the court’s granting of the declarators sought by the pursuer. That is clear not least from the paucity of pleading in the answers from answer 9 onwards from both defenders. As such, the pursuer moves the court to sustain his first and second pleas in law, find the defences, as lodged by the defenders, to be irrelevant and thereafter to sustain his third plea in law and grant decree in terms of the first conclusion.

4       Ground 4: The Lord Ordinary erred in law in her decision of 30th July 2020 by misdirecting herself on the law applicable to common law protective expenses orders et separatim making factual determinations not supported by the material available to her.

4.1              A number of errors of law were made by the Lord Ordinary, Lady Poole, in relation to her decision on 30 July 2020 to refuse a protective expenses order at the motion of the pursuer. It is respectfully submitted that this court should take the opportunity to clarify the law in relation to such applications.  The pursuer has a right at common law to effective access to the courts. That access may not be impeded either by excessive court fees or by uncertainty as to the level of expenses to which he might be exposed in coming before the court: R (UNISON) v Lord Chancellor [2020] AC 869 at §§87-89, 93-98

4.2              The common law criteria for the granting of a protective expenses order are set out in a number of decisions of this court including Newton Mearns Residents Flood Protection Group v East Renfrewshire Council and another [2013] CSIH 70 and Gibson v Scottish Ministers, 2016 SC 454.   Rather than applying the common law criteria for a protective expenses order, the Lord Ordinary innovated on the criteria in a manner that has no foundation in law. In particular, the Lord Ordinary found that the public interest did not require the undoubted issue of general public importance to be decided in this case because there were “other ways to resolve the issues raised”.  It has never been part of the law of Scotland that, in order to qualify for a protective expenses order, the action in question must be the sole way legally of resolving the dispute. It is a matter of fact that (i) there are no other actions in dependence seeking the answer to the questions raised in this action and (ii) the “other ways” of which the Lord Ordinary speaks were found by the (different) Lord Ordinary not to be exhaustive after debate. Indeed the “in these proceedings” that the Lord Ordinary adds to the end of the second criterion is an innovation by the Lord Ordinary without any foundation or basis.

4.3              Furthermore, the Lord Ordinary based her determination of the motion on findings that were not the subject of submission and nor are they supported by evidence. In particular, the Lord Ordinary found that the pursuer had an indirect financial interest in the proceedings. The Lord Ordinary was not addressed on this matter and nor did she pose any question in relation to it at the hearing and the finding is not supported by evidence. The Lord Ordinary appears to have laboured under the incorrect assumption that crowdfunded sums are available to the litigant come what may and, therefore, by limiting his potential liability in expenses, the pursuer would somehow personally benefit from the sums that had been crowdfunded. This is wholly inaccurate and, respectfully, betrays a misunderstanding of the way in which crowdfunding operates. Such a misunderstanding could have been dealt with in submissions had the issue been raised with the counsel appearing at the opposed motion hearing but the question was not raised with counsel.  The reality of crowdfunding is that, to the extent that the crowdfunded sums are not required, they are retained by the crowdfunding website and placed into an access to justice fund. Any donor who has pledged over £1,000 is entitled to a pro-rated refund of his or her donation to the extent that it is not used. Importantly, the funds are not made available to the pursuer.   Any suggestion by the Lord Ordinary, therefore, that the imposition of a cap on the extent to which the pursuer would be liable in expenses to the defenders would result in a windfall for the pursuer because he would get to retain the crowdfunded sums is simply incorrect. As this court is aware, a PEO does not remove the pursuer’s responsibility to pay his own solicitors and counsel.  It simply creates certainty in relation to his potential liability to an adverse award of expenses. It means that issues can be raised before the courts without the risk of an adverse award of expenses being the driving factor. As indicated in Newton Mearns, where one is not dealing with private law rights and commercial litigation, expenses should not be the driving force behind litigation. 

4.4              The Lord Ordinary appeared to be under the impression that a protective expenses order requires a large burden of expense to be borne by the public purse (paras 2, 7, 24, 25, 26, 34). There is no basis for this finding. Indeed, if a protective expenses order is made by this court, the public purse also benefits from a cap on any expenses that it would be required to pay to the pursuer. It provides certainty to both parties.   As regards the estimates of how much the proceedings would likely cost, the Lord Ordinary was not permitted to opt, as she did, without cause to substitute legal aid rates for the professionally-produced estimate of costs from a law accountant. Having done so, the Lord Ordinary failed to have proper regard to the relevant factors that were placed before her and, instead, she took into account an irrelevant factor. The pursuer’s team are not required to act on legal aid rates in order for the pursuer so satisfy the criteria for a PEO.

Legal aid rates are an inappropriately low level by which to judge whether an action is prohibitively expensive. 

4.5              The new criteria upon which the Lord Ordinary, Lady Poole, decided to refuse a PEO in the court below would effectively turn PEO applications into full procedure roll debates as it would require the contested legal matters which were specifically at issue between the parties (as to whether the present proceedings were properly appropriately and timeously raised) to be argued in full before the Lord Ordinary considering the PEO application. That was expressly stated to be contrary to what was required and applications should not descend into a stringent and detailed examination of pleadings: Carroll v Scottish Borders Council 2014 SLT 659 at §14.  The information to be provided to the court during an application for a PEO is not exhaustively prescribed. However, in usual applications, the information provided is that set out by Lord Drummond Young in Carroll v Scottish Borders Council 2014 SLT 659 at §24.  

4.6             The Lord Ordinary, Lady Poole’s approach innovates upon matters by making a judgment on an area of some complexity, on which she received no detailed submissions, to come to her view, which she said partly justified her refusal of PEO.  The fact is that, as she recognises, the Lord Ordinary has, in the guise of considering one Corner House criterion, in fact made (albeit what she says is a preliminary decision) on a substantive issue of law on which she received little if any submissions.  Yet the result is of her provisional decision is a refusal of a PEO which could bar access to the courts.  That is wholly inappropriate and undercuts the very rationale of and for PEOs as the decision in Carroll and Gibson demonstrate.  The correct approach when considering a PEO application at common law is to have regard to the subjective estimates of the overall cost of that particular litigation[13] before determining objectively whether it is reasonable in all the circumstances that the applicant be required to do so.[14]   The Lord Ordinary misdirected herself in law when considering the matter of the PEO. Her decision has now been reported at 2021 SLT 8 and this court should ensure that the Lord Ordinary’s errors are not mistakenly understood as being correct in law. 

5 CONCLUSION

5.1 For the reasons set out above, the Lord Ordinary’s decision to sustain the first to fourth pleas in law for the first defender, and the first and second pleas in law for the second defender and dismiss the action was premised on errors of law. This court should grant

the reclaimer’s reclaiming motion.    Separately, this court should recall the interlocutor of Lady Poole of 30th July 2020 on the basis that it was premised on errors of law as to the correct test to be applied. 

5.2 Thereafter, this court, in light of the defenders’ failure to plead any relevant defence, should grant the declarators concluded for by the pursuer. 

                                          Aidan O’Neill QC                 David Welsh, advocate

[1] See for example the preamble to the Restraint of Appeals Act 1533 (which abolished the right of appeal under the Canon Law of the Catholic Church from the church courts in England to the Roman Curia) as drafted by Thomas Cromwell.

“It is manifestly declared and expressed that this realm of England is an Empire, and so hath been accepted in the world, governed by one supreme head and king, having the dignity and royal estate of the Imperial Crown of the same”

[2] Roger Mason and Martin Smith A Dialogue on the law of kingship among the Scots – a critical edition and translation of George Buchanan’s De iure regni apud Scotos dialogus (Ashgate: Aldershot, 2004) 

[3] See R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 Lord Steyn observed (at §§ 71, 102) that: “The Dominance of the Government.

[4] . The power of a government with a large majority in the House of Commons is redoubtable. That has been the pattern for almost 25 years. In 1979, 1983 and 1987 Conservative governments were elected respectively with majorities of 43, 144 and 100. In 1997, 2001 and 2005 New Labour was elected with majorities of respectively 177, 165 and 67. As Lord Hailsham explained in The Dilemma of Democracy (Collins, London, 1978), 126 the dominance of a government elected with a large majority over Parliament has progressively become greater. This process has continued and strengthened inexorably since Lord Hailsham warned of its dangers in 1978. 

[5] . … [W]e may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty.The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism….”

[6] R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 Lord Hope observed (at  303-304, §§ 104, 106):

“Our [UK] constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified …   [E]ven Dicey himself was prepared to recognise that the statesmen of 1707 believed in the possibility of creating an absolutely sovereign legislature which should yet be bound by unalterable laws: Thoughts on the Scottish Union, pp 252-253, quoted by Lord President Cooper in MacCormick v. Lord Advocate, 1953 SC 396, 412. So here too it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality.”

[7] In AXA General Insurance Co Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 Lord Hope noted at §50: 

“The question whether the principle of the sovereignty of the Union Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion. For Lord Bingham, writing extra-judicially, the principle is fundamental and in his opinion, as the judges did not by themselves establish the principle, it was not open to them to change it: The Rule of Law (2010), p 167. Lord Neuberger of Abbotsbury, in his Lord Alexander of Weedon lecture, “Who are the masters Now?” (6 April 2011), said at § 73 that, although the judges had a vital role to play in protecting individuals against the abuses and excess of an increasingly powerful executive, the judges could not go against the will of Parliament as expressed through a statute. Lord Steyn on the other hand recalled at the outset of his speech in R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 §71, the warning that Lord Hailsham of St Marylebone gave in The Dilemma of Democracy (1978), p 126 about the dominance of a government elected with a large majority over Parliament. This process, he said, had continued and

[8] This follows the influential analysis of the late Laws LJ who in Thoburn v Sunderland Council [2002] EWHC 195 (Admin) [2003] QB 151 spoke of a new category of statutes in particular the European Communities Act 1972 which incorporated EU law into domestic law – as being “constitutional” in the sense that, while not being entrenched, their provisions are not subject to implied repeal by later “ordinary” Acts of Parliament.

[9] A. V. Dicey Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982) 21-22 and 78: “That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure. Of statutes intended to arrest the possible course of future legislation, the most noteworthy are the Acts which embody the treaties of Union with Scotland and Ireland. The legislators who passed these Acts assuredly intended to give to certain portions of them more than the ordinary effect of statutes. Yet the history of legislation in respect of these very Acts affords the strongest proof of the futility inherent in every attempt of one sovereign legislature to restrain the action of another equally sovereign body.”

[10] Compare with Quebec Secession Reference [1998] 2 SCR 217 in which the Canadian Supreme Court held that there was no right to unilateral secession by Quebec from Canada under Canadian or international law but that “…if a clear majority of the people of Quebec voted in a referendum on a clear question in favour of secession, federal and other provincial governments could not remain indifferent” and would be under a duty to enter into good faith negotiations on the terms of Quebec’s withdrawal from the Canadian Federation.

[11] Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62, 2019 SC 111 per Lord President Carloway at §§21-22

[12] Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62, 2019 SC 111 per Lord Drummond Young at §§ 52-53:

“52.   Although the United Kingdom’s constitutional system in large measure recognises the separation of powers, especially in relation to the judicial function, it is in my opinion important to recognise that the three elements of government do not exist in separate spheres. They rather operate as a totality, with each element exercising a distinct function within an overall system. In relation to the construction and application of existing legislation … it is the courts …  that exercise the relevant constitutional function. If it is necessary or desirable to determine what the existing

[13] Carroll v Scottish Borders Council, 2014 SLT 659

[14] Gibson v Scottish Ministers, 2016 SC 454 

CONTACT ME

Email : martin@martinjkeatings.com

Copyright © Martin James Keatings - 2021 - All Rights Reserved.