RECLAIMING MOTION BY MARTIN JAMES KEATINGS AGAINST THE ADVOCATE GENERAL AND ANOTHER [2021] ScotCS CSIH_25 (30 April 2021)

RECLAIMING MOTION BY MARTIN JAMES KEATINGS AGAINST THE ADVOCATE GENERAL AND ANOTHER [2021] ScotCS CSIH_25 (30 April 2021)

The action was dismissed as premature, hypothetical, and academic because there was no Bill before Parliament, and the statutory scheme of the Scotland Act 1998 provides that only the UK Supreme Court may scrutinise legislative competence of a Bill prior to Royal Assent. The court's jurisdiction to grant declarator is excluded by necessary implication in this context. The refusal of a Protective Expenses Order was upheld as the matter was res judicata and not open to review at this stage.

Citation
[2021] ScotCS CSIH_25
Parties
Pursuer and Reclaimer: Martin James Keatings; First Defender and Respondent: The Advocate General; Second Defender and Respondent: The Lord Advocate
Jurisdiction
Scotland
Judgment Date
30 April 2021
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session, Post Outer House Decision
Outcome
Action dismissed; interlocutors of the Lord Ordinary adhered to; cross-appeal allowed in part; refusal of Protective Expenses Order upheld.
Legal Topics
Legislative Competence, Judicial Review, Declarator, Separation of Powers, Standing (locus Standi), Protective Expenses Order, Scottish Independence Referendum, Reserved Matters
Constitutional Law Administrative Law Public Law Legislative Competence Judicial Review Declarator Separation of Powers Standing (locus Standi) +3 more

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Parties

Martin James Keatings

Pursuer and Reclaimer

The Advocate General

First Defender and Respondent

The Lord Advocate

Second Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session, Post Outer House Decision

Legal Issues

  1. 1 Whether the Scottish Parliament has power under the Scotland Act 1998 to legislate for an independence referendum without UK Government consent
  2. 2 Whether the draft Scottish Independence Referendum Bill is within legislative competence
  3. 3 Whether the action is premature, hypothetical, or academic and thus incompetent

Ratio Decidendi

The action was dismissed as premature, hypothetical, and academic because there was no Bill before Parliament, and the statutory scheme of the Scotland Act 1998 provides that only the UK Supreme Court may scrutinise legislative competence of a Bill prior to Royal Assent. The court's jurisdiction to grant declarator is excluded by necessary implication in this context. The refusal of a Protective Expenses Order was upheld as the matter was res judicata and not open to review at this stage.

Court Disposition

Action dismissed; interlocutors of the Lord Ordinary adhered to; cross-appeal allowed in part; refusal of Protective Expenses Order upheld.

Orders

  • Action dismissed as incompetent, hypothetical, and academic.
  • Lord Ordinary's interlocutors of 5 February 2021 and 30 July 2020 adhered to.