Introduction

The case titled Reclaiming Motion by Martin James Keatings against the Advocate General and Another ([2021] CSIH 25) represents a pivotal moment in Scottish constitutional law. Heard by the Scottish Court of Session on April 30, 2021, the judgment addresses the extent of legislative competence held by the Scottish Parliament, particularly concerning the authority to legislate for a referendum on Scottish independence without requiring the consent of the United Kingdom Government. This comprehensive commentary delves into the intricacies of the case, the court's reasoning, the precedents cited, and the broader implications for future legislative and judicial processes in Scotland.

The primary parties involved in the case include:

• Pursuer: Martin James Keatings, a campaigner advocating for Scottish independence and a voter in the forthcoming Scottish Parliament elections.
• Defenders and Respondents: The Advocate General and the Lord Advocate, representing the Scottish Government.

Keatings sought two declarators:

• That the Scottish Parliament possesses the authority under the Scotland Act 1998 to legislate for a referendum on Scottish independence without the need for consent from the United Kingdom Government.
• That the Scottish Government's proposed Act concerning an independence referendum falls within the legislative competence of the Scottish Parliament.

Summary of the Judgment

The judgment delivered by Lord President Lord Carloway scrutinizes whether Keatings' motion to obtain declaratory judgments is justiciable. The court examined the procedural aspects, including the refusal of a Protective Expenses Order (PEO) by the Lord Ordinary, which was upheld by the Inner House. The decision primarily hinged on deeming the action as academic, hypothetical, and premature, thus lacking the necessary standing and practical effect to warrant the court's intervention.

Key findings include:

• The Scottish Parliament's authority to pass legislation for a referendum is restricted by reserved matters under the Scotland Act 1998, specifically pertaining to the Union of the Kingdoms of Scotland and England and the sovereignty of the United Kingdom Parliament.
• The court upheld the notion that declarators in this context would be premature and hypothetical, as the proposed legislation had not yet been formally introduced or passed.
• Protective Expenses Orders were denied, affirming that Keatings' financial backing through crowdfunding was sufficient to cover potential legal costs.
• The court emphasized the separation of powers, crystallizing that judicial bodies should refrain from adjudicating on legislative competence in absentia, especially when no actual legislation has been enacted that could be challenged.

Consequently, the reclaiming motion was dismissed, reinforcing the procedural boundaries within which constitutional questions should be addressed.

Analysis

Precedents Cited

The judgment extensively references prior cases to underpin its reasoning. Notable among these are:

• Wightman v Secretary of State for Exiting the European Union (2019 SC 111): Emphasized the limits of judicial intervention in hypothetical scenarios without immediate practical effects.
• Cherry v Advocate General (2020 SC 37): Reinforced the principle that declaratory judgments should not be granted in premature or academic contexts.
• AXA General Insurance Co v Lord Advocate (2012 SC (UKSC) 122): Established that the Scottish Parliament remains subject to judicial oversight unless explicitly exempted.
• R (Child Poverty Action Group) v Secretary of State for Work and Pensions (2011) 2 AC 15: Highlighted the necessity for clear statutory language when attempting to exclude judicial review.
• Representation of the People Act 1983: Addressed the legality of political maneuvers and promises in campaign contexts.

These precedents collectively informed the court's stance on the boundaries of judicial review, legislative competence, and the appropriate contexts for declaratory judgments.

Legal Reasoning

The court's legal reasoning can be dissected into several key components:

• Separation of Powers: Upholding the doctrine that legislative bodies should operate within their defined competencies without undue judicial interference. The court underscored that determining legislative competence prematurely could encroach upon parliamentary sovereignty and disrupt the legislative process.
• Judiciability of Declarators: The court determined that declarators in Keatings' context were non-justiciable due to their hypothetical nature. Without an actual enactment of legislation, there was no concrete legal dispute necessitating judicial clarification.
• Standing and Interest: The pursuer failed to demonstrate a sufficient direct interest that would confer standing to challenge the legislative competence of a non-enacted Bill. The court recognized that being a voter did not equate to having a legally actionable interest in determining the competence of proposed legislation.
• Protective Expenses Order (PEO): The denial of the PEO was justified on the grounds that the pursuer's crowdfunding was adequate to meet potential legal costs, negating the need for a protective financial mechanism.
• Managed Judicial Intervention: The court emphasized existing mechanisms for scrutinizing legislative competence, such as references to the UK Supreme Court by law officers, thereby rendering Keatings' approach superfluous.

By meticulously evaluating these facets, the court reinforced the existing legal framework governing legislative competence and the appropriate avenues for addressing constitutional questions.

Impact

The implications of this judgment are multifaceted:

• Clarification of Judicial Boundaries: The decision delineates the limits of judicial intervention in legislative processes, particularly emphasizing that declaratory judgments cannot be sought on hypothetical or unintroduced legislation.
• Guidance on Declarators: Future applicants seeking declarators must demonstrate a concrete legal dispute with tangible effects, rather than theoretical or speculative concerns.
• Financial Accessibility: The denial of the PEO highlights the judiciary's stance on funding mechanisms for litigants, potentially influencing how future cases assess financial dependencies like crowdfunding.
• Reaffirmation of Procedural Norms: The judgment reinforces the importance of adhering to established legislative scrutiny processes, such as references to the UK Supreme Court, thereby maintaining orderly legislative progression.
• Influence on Independence Campaigns: While the judgment does not preclude the Scottish Parliament from legislating on independence referendums, it sets a precedent on how and when such legislative actions can be judicially reviewed.

Collectively, these impacts contribute to a more defined and structured interaction between the judiciary and legislative bodies in Scotland, fostering a balance between democratic processes and judicial oversight.

Complex Concepts Simplified

Declaratory Judgment

A declaratory judgment is a legal determination by a court that clarifies the rights, duties, or obligations of each party in a dispute, without necessarily awarding damages or ordering specific actions.

Legislative Competence

Legislative competence refers to the authority granted to a legislative body to enact laws within certain defined areas. In this context, it pertains to whether the Scottish Parliament has the power to legislate for a referendum on independence without needing approval from the UK Parliament.

Protective Expenses Order (PEO)

A PEO is a court order that allows a plaintiff to recover their legal costs from the defendant if the plaintiff succeeds in the lawsuit. It is intended to protect individuals who might otherwise be deterred from seeking justice due to financial constraints.

Reserved Matters

Reserved matters are specific areas of governance that remain under the authority of the UK Parliament, even after devolved administrations like the Scottish Parliament have been established. These include subjects like the Union of the Kingdoms of Scotland and England and the sovereignty of the UK Parliament.

Separation of Powers

This is a constitutional principle that divides government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. In this case, it underscores the division between the judiciary and the legislature.

Conclusion

The judgment in Reclaiming Motion by Martin James Keatings against the Advocate General and Another serves as a critical reference point in understanding the boundaries of judicial intervention in legislative matters within Scotland's constitutional framework. By dismissing the declaratory motions as premature and hypothetical, the court reinforced the sanctity of established legislative scrutiny processes and upheld the principle of separation of powers.

Key takeaways from this case include:

• The judiciary maintains a cautious stance against intervening in legislative processes unless there is a clear, present, and concrete legal dispute.
• Declaratory judgments are reserved for situations with tangible legal implications, not for theoretical or hypothetical questions.
• The existing mechanisms for legislative scrutiny, such as references to the UK Supreme Court, are deemed sufficient for addressing concerns about legislative competence.
• The separation of powers remains a cornerstone of Scottish constitutional law, ensuring that legislative bodies operate within their defined competencies without undue judicial oversight.

Ultimately, this judgment reinforces the structured interplay between Scotland's legislative ambitions and the judicial system's role in safeguarding constitutional proprieties. It underscores the importance of adhering to procedural norms and the necessity for claims to have genuine legal substance to merit judicial consideration.