An appeal by a Scottish independence campaigner who sought a ruling on the power of the Scottish Parliament to hold an independence referendum without Westminster consent has been refused by the Inner House of the Court of Session.
Lord President Carloway, Lord Menzies and Lord Doherty upheld the decision of Lady Carmichael in the Outer House that the action by Martin Keatings was hypothetical and premature, and should be dismissed. The judges further allowed an appeal by the Lord Advocate, ruling that the action was inconsistent with the Scotland Act 1998.
Mr Keatings wanted the court to pronounce two declarators: that the Scottish Parliament has the power to hold an independence referendum without requiring the consent of the UK Government; and that the Scottish Government's draft Scottish Independence Referendum Bill contains no provisions which would be outside the Scottish Parliament’s legislative competence.
On appeal Mr Keatings argued that his action was not hypothetical. The Scottish Government was seeking re-election on the basis of a promise to introduce an Independence Referendum Bill. A ruling on whether the Bill was lawful would allow him to vote in an informed way in the Scottish Parliament election. The declarators would not bind MSPs to act in a particular way, but they would enable voters to hold them to account.
Delivering the opinion of the court, Lord Carloway said a declarator was not required to enable the pursuer to cast a vote in the election. The current remedies sought were premature in that a bill, as opposed to an Act of the Parliament, had no legislative force.
He elaborated: "A draft bill has no legal status. The result of the election is not yet known. A bill may or may not be introduced, depending upon the Government formed as a consequence of the election. If introduced, a bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended. The UK Government may or may not be prepared to obtain an Order in Council under s 30 of the 1998 Act, which would, in any event, allow the bill to proceed to Royal Assent. If the bill were passed without such an Order, it is highly probable that the UK Government’s law officers would refer the bill for scrutiny by the UK Supreme Court. All of these eventualities render the current remedies sought premature, hypothetical and academic. A decision by this court on the matters litigated would serve no practical purpose."
In allowing the Lord Advocate’s appeal the court further held that it was clear from the scheme of the Scotland Act that s 33, which provides for scrutiny by the Supreme Court, provided the only method by which a court could scrutinise a measure for legislative competency prior to Royal Assent.
Without ruling on the merits, the judges observed that had the court been of the view that it ought to answer the questions asked, it would have done so as a matter of straightforward statutory interpretation of the Scotland Act, rather than with regard to the pursuer's submissions on the legitimacy of the Scottish Parliament as deriving from the sovereignty of the Scottish people.
"The question would have been whether an Act to hold a referendum on Scottish Independence ‘relates to the Union of the Kingdoms of Scotland and England’ or ‘the Parliament of the United Kingdom’ having regard to its effect in all the circumstances", Lord Carloway stated. "Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day."