Introduction

The case of Martin James Keatings against (First) Advocate General for Scotland and (Second) The Lord Advocate ([2021] CSOH 16) was heard by the Scottish Court of Session's Outer House on February 5, 2021. Martin James Keatings, the pursuer, sought two declaratory judgments: firstly, asserting that the Scottish Parliament possesses the authority under the Scotland Act 1998 to legislate for a referendum on Scottish independence without requiring consent from the United Kingdom Government or necessitating any amendments by the Union Parliament; secondly, declaring that the Scottish Government's proposed Act pertaining to an independence referendum falls within the legislative competence of the Scottish Parliament.

The defendants, represented by Johnston QC, Webster QC, Pirie; OAG, and Mure QC, C O’Neill QC (sol adv); SGLD, contested these claims, advancing several preliminary pleas that the action was academic, hypothetical, premature, and that the pursuer lacked standing.

Summary of the Judgment

Lady Carmichael, delivering the judgment, dismissed the action on the grounds that Mr. Keatings lacked the necessary standing, and that the proceedings were hypothetical, academic, and premature. The court emphasized that declaratory actions of this nature must involve live, practical disputes where the declarator sought has a direct and sufficient interest in the matter. Since no bill had been introduced, and there was no imminent threat of ultra vires legislation, the court found no justiciable controversy warranting a declaratory ruling at that stage.

Analysis

Precedents Cited

The judgment referenced several key precedents to establish the boundaries of declaratory actions and standing:

• R (Wightman) v Secretary of State for Exiting the European Union [2019] UKSC 111: Emphasized that declaratory actions must involve live disputes and that parliamentary sovereignty limits the courts' role in certain judicial reviews.
• AXA General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC) 122: Defined 'sufficient interest' in public law applications, focusing on direct effects rather than personal or generalized interests.
• Whaley v Lord Watson of Invergowrie 2000 SC 34: Affirmed that the Scottish Parliament is subject to judicial review concerning its legislative competence.
• Miller II (R (Miller) v Prime Minister) [2020] AC 373: Highlighted the separation of powers and the judiciary's role in determining the legality of governmental actions.
• Bank of East Asia v Shepherd & Wedderburn 1994 SCLR 536: Discussed the importance of documentary evidence in bringing cases to court.
• Macnaughton v British Transport Commission 1957 SC 195: Differentiated between academic questions and those warranting judicial intervention.

Legal Reasoning

Lady Carmichael meticulously dissected the arguments surrounding standing and the nature of declaratory actions. The core of her reasoning rested on the principle that:

• Standing: The pursuer must demonstrate a direct and substantial interest in the matter. Mr. Keatings, described as a campaigner and voter, failed to establish a personal or representative interest that would warrant the court's intervention.
• Hypothetical Nature: The absence of a live dispute or an imminent bill meant that the declaratory action lacked practical significance. The court emphasized that legislative competence issues should be addressed through established statutory mechanisms, not through abstract legal declarations.
• Procedural Appropriateness: The action did not align with the procedural requisites set forth in the Scotland Act 1998. The court underscored that instances requiring judicial scrutiny should predominantly involve resolved legal questions with tangible implications.

Additionally, the court dismissed assertions from the defenders that the Scotland Act 1998 precluded such declaratory actions, reinforcing that unless explicitly stated, judicial oversight remains accessible to ensure legislative conformity with constitutional statutes.

Impact

This judgment serves as a critical precedent in Scottish constitutional law, delineating the limits of declaratory actions and reinforcing stringent standing requirements. Key implications include:

• Restrictive Approach to Declaratory Actions: Parties cannot seek broad legal declarations absent a direct and substantial interest, preventing the courts from being inundated with hypothetical or politically motivated cases.
• Emphasis on Established Procedures: Legislative competence disputes must adhere to the statutory frameworks outlined in the Scotland Act 1998, ensuring that such matters are resolved through appropriate legal channels rather than through declaratory judgments.
• Clarification of Judicial Roles: The courts' role as guardians of the rule of law is reaffirmed, but within the confines of procedural appropriateness and genuine legal controversies.

Future litigants must ensure they possess a clear and direct interest in matters before seeking declaratory relief, and must adhere strictly to procedural norms established by constitutional statutes.

Complex Concepts Simplified

Conclusion

The Court of Session's decision in Keatings v Advocate General for Scotland underscores the judiciary's commitment to maintaining procedural integrity and ensuring that only parties with a direct and substantial interest can invoke judicial scrutiny through declaratory actions. By dismissing the action on the grounds of standing and the hypothetical nature of the pursuit, the court reinforced the principle that declaratory actions must be anchored in concrete, live disputes with tangible legal implications. This judgment not only clarifies the scope and limitations of declaratory actions within Scottish constitutional law but also reinforces the necessity for litigants to navigate established statutory mechanisms when contesting legislative competence. Ultimately, the ruling upholds the delicate balance between judicial oversight and legislative sovereignty, ensuring that the courts act as guardians of the rule of law without overstepping into political domains.