MARTIN JAMES KEATINGS AGAINST (FIRST) ADVOCATE GENERAL FOR SCOTLAND; (SECOND) THE LORD ADVOCATE [2021] ScotCS CSOH_16 (05 February 2021)

MARTIN JAMES KEATINGS AGAINST (FIRST) ADVOCATE GENERAL FOR SCOTLAND; (SECOND) THE LORD ADVOCATE [2021] ScotCS CSOH_16 (05 February 2021)

The pursuer lacks standing as he is not directly affected by the subject matter of the action, which concerns the powers of a body of which he is not a member and which is not proposing to exercise the power in question. The action is hypothetical and premature as no bill has been introduced, and the statutory scheme under the Scotland Act 1998 provides exclusive procedures for determining legislative competence before Royal Assent. The court should not entertain the action, as to do so would be inconsistent with the constitutional structures established by the 1998 Act and the principle of separation of powers.

Citation
[2021] ScotCS CSOH_16
Parties
Pursuer: Martin James Keatings; First Defender: Advocate General for Scotland; Second Defender: The Lord Advocate
Jurisdiction
Scotland
Judgment Date
05 February 2021
Procedural Posture
Ordinary Action for Declarator / Procedure Roll Debate on Preliminary Pleas
Outcome
Action dismissed
Legal Topics
Legislative Competence, Referendum, Standing (locus Standi), Separation of Powers, Prematurity and Hypothetical Actions
Constitutional Law Public Law Devolution Legislative Competence Referendum Standing (locus Standi) Separation of Powers Prematurity and Hypothetical Actions

Case Brief

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Parties

Martin James Keatings

Pursuer

Advocate General for Scotland

First Defender

The Lord Advocate

Second Defender

Procedural Posture

Ordinary Action for Declarator / Procedure Roll Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether the pursuer has standing to seek declarator on the legislative competence of the Scottish Parliament to legislate for an independence referendum
  2. 2 Whether the action is hypothetical, academic, or premature
  3. 3 Whether the court should entertain the action in light of the statutory scheme under the Scotland Act 1998 for determining legislative competence

Ratio Decidendi

The pursuer lacks standing as he is not directly affected by the subject matter of the action, which concerns the powers of a body of which he is not a member and which is not proposing to exercise the power in question. The action is hypothetical and premature as no bill has been introduced, and the statutory scheme under the Scotland Act 1998 provides exclusive procedures for determining legislative competence before Royal Assent. The court should not entertain the action, as to do so would be inconsistent with the constitutional structures established by the 1998 Act and the principle of separation of powers.

Court Disposition

Action dismissed

Orders

  • The action is dismissed on the defenders' preliminary pleas.