Martin Keatings has posted his legal submission concerned with proving the Scottish nation does not need permission from its colonial neighbour to organise an advisory referendum on independence. (The link for the full 33 pages is at the end of this article.) In fact, the Scottish parliament should not require permission for a referendum from any nation on any subject. Referenda are generally a test of the public mood. A government can choose to act upon the result or take no action other than using the result to stimulate debate.
This is an important, historic document. In international law a mass movement for autonomy is recognised by all member states of the United Nations, (the UK signed up to that principle) whether or not the colonial nation acknowledges it as legal or inflammatory. Why it should be argued differently for Scotland is for British colonials to say, and they do, often, and aggressively, but with no legal authority. Keatings action is, therefore, an attempt to set the record straight.
I realise reading a legal document is daunting for a untrained person, especially a long one, like this one, full of legal jargon. If nothing else, the reader soon learns even the smartest QC isn’t necessarily a master of flowing prose, syntax or even basic grammar. You wonder if court lawyers have ever heard of paragraph spacing. So, with Martin Keatings forbearance, and a lot of trepidation, I have lifted a few interesting paragraphs to reproduce them here.
If readers tackle the full document and concentrate on the large paragraphs you will get a good understanding of the sound reasons why no mass movement for liberty ever required the permission of the dominant power to hold a referendum gauging public opinion. After all, Scotland and England are two nations. The Union did not dissolve one or the other.
The ‘Edinburgh Agreement’, signed by Alex Salmond and David Cameron, set the precedent; it is well nigh impossible for the Tory party, any party, to argue they can and will block a second plebiscite after one has already been settled and in the history books. Moreover, it is highly risky for the opponents of Scotland’s greater democracy to keep threatening sanctions if we exercise free will, because they now know incessant and belligerent resistance to their tyranny is resented by the public at large.
Finally, we should not forget, no matter what dimwit colonial argues otherwise, it is almost impossible for a country to ‘give away’ its sovereignty. If the Union meant that, England would be South Scotland.
To aid a quick study, I have highlighted a few key paragraphs.
Note of Argument for the Pursuer as lodged IN THE COURT OF SESSION NOTE OF ARGUMENT FOR THE PURSUER in the cause MARTIN JAMES KEATINGS residing at [address redacted by Grouse Beater], PURSUER against (FIRST) THE ADVOCATE GENERAL FOR SCOTLAND, Victoria Quay, Edinburgh, EH6 6QQ; and (SECOND) THE LORD ADVOCATE, Crown Office, Chambers Street, Edinburgh EH1 1LB (THIRD) THE SCOTTISH MINISTERS, Victoria Quay, Edinburgh, EH6 6QQDEFENDERS
1. INTRODUCTION1.1. In this action the pursuer seeks the following substantive orders from the court: A declarator that the Scottish Parliament has power under the provisions of the Scotland Act 1998 (“SA 1998”) to legislate for the holding of a referendum on whether Scotland should be an independent country, without requiring the consent of the United Kingdom Government or any further amendment, by the Union Parliament, of the SA 1998 as it stands. A declarator that the Scottish Government’s proposed Act of the Scottish Parliament concerning an independence referendum contains no provision which, if passed by the Parliament, would be outside its legislative competence.
1.2. This note of argument is prepared in preparation for the two day diet on the procedure roll, as ordered by this court by its interlocutor of 4th November 2020. Defenders’ preliminary Pleas
1.3. The Advocate General for Scotland (the first defender) and the Lord Advocate (the second defender) have both pled a large number of preliminary pleas in relation to the action.These amount to claims to the effect that:
The proceedings are academic; The proceedings are hypothetical; The proceedings are incompetent; The proceedings should have been raised by way of an application to the supervisory jurisdiction; The pursuer has no title, interest or standing to bring the proceedings; The proceedings are premature; The pursuer’s averments are irrelevantet separatim lacking in specification; The pursuer’s declarators are too vague.
1.4. Given the number of preliminary pleas – the supporting propositions for which tend to blend into each other – one would be forgiven for thinking that the UK Government and the Lord Advocate simply did not want any decision on the merits of the action.
1.5. Indeed, both defenders who remain in this action have thus far actively sought to prevent this court carrying out its constitutional function in clarifying questions of law by relying instead on unfounded and inconsequential preliminary points.
1.6. This court was clear in permitting this hearing that all parties’ pleas will be considered and determined. That includes those of the pursuer. It cannot be permitted to pass without note that both defenders have sought to expend public funds on the instruction of multi-plesenior counsel on each side in an attempt to prevent the pursuer from having his legal questions determined by this court. Defenders’ (lack of) position on the substance of the pursuer’s case
1.7 The Advocate General in his note of argument also sets out the UK Government’s response to the substantive arguments advanced by the pursuer in relation to the extent of the legislative competence of the Scottish Parliament under the SA 1998 to enact legislation making provision for the holding of an independence referendum. He states that “secession(sic) involves (at least) reduction in the UK Parliament’s powers…. Therefore Scottish independence would affect the reserved matters in both §1(b) [the Union of the Kingdoms of Scotland and England] and §1(c) [the Parliament of the United Kingdom]. He relies, in part support for his analysis, on the statements of 31 January 2020 and 1 September 2020 by
3 Nicola Sturgeon MSP in her capacity as First Minister which are referred to in the pursuer’s pleadings.
1.8 The Scottish Ministers have withdrawn their defences to this action. The Advocate General for Scotland relies upon these now withdrawn defences to make the following claim in his note of argument: The current Scottish Government’s policy on a referendum on Scottish independence is: (i) not to hold one before the elections to the Scottish Parliament due to be held on 6 May2021; (ii) to “publish a draft bill” (rather than introduce a Bill in the Scottish Parliament)before those elections; and (iii) depending on the result of those elections, to seek to obtain an order under section 30 modifying the SA to give the Scottish Parliament the power to legislate for one.
1.9 Following the withdrawal of its defences, the Scottish Government has stated that it is going to publish a draft Referendum Bill before the end of the current Parliamentary session. Further, the current First Minister, Nicola Sturgeon MSP, has announced that her party, the Scottish National Party, will be campaigning in the May 2020 Scottish Parliamentary election on the basis that, if re-elected as the largest party in the Parliament with sufficient support to re-form a Government, this draft will be introduced as a Government Bill before the Parliament.
No Government Bill can be introduced to the Parliament unless the Scottish Government Minister in charge of that Bill shall, on or before introduction of the Bill in the Parliament, state that in the Scottish Government’s view the provisions of the Bill would be within the legislative competence of the Parliament: Section 31(1) SA 1998. But no statement has been made by the Scottish Government that there requires first to be a modification – whether by the Westminster Parliament or Crown in right of the UK Government – of the current terms of the terms of the SA 1998 and/or that it will not introduce such a Bill on the basis of the legislative competence of the Scottish Parliament under the terms of the SA 1998 as it now stands without modification.
1.10 Against that background it might therefore reasonably be expected that argument would be presented by or on behalf of the Scottish Government to this court to the effect that its draft Bill would be within the legislative competence of the Parliament. No such argument is made, however. Indeed the Lord Advocate refuses to take any position on whether or not the Scottish Government’s proposed Act of the Scottish Parliament concerning an independence referendum contains any provision which, if passed by the Parliament, would be outside its legislative competence. All he tells the court is that: “He does not intend to advance submissions on the merits of the pursuer’s substantive case on the legislative competence of the Scottish Parliament.”
41.11 Interestingly this same tactic of refusing to engage with the substance of the legal question before the court was employed by the Advocate General for Scotland in the hearing in Wightman before the CJEU, presumably in an unsuccessful attempt to convince the court that there was no “dispute” before the national court and so the legal question raised by it was purely academic and hypothetical. But this kind of political motivated litigation gaming might be thought to be a surprising position for the Lord Advocate to take, given that he was expressly convened in this action is his constitutional persona and capacity as the independent constitutional defender of the rights and powers of the Scottish Parliament.
20 The United Kingdom Government argues that the question referred is inadmissible because it is hypothetical. In particular, the United Kingdom Government submits that no draft act of revocation of the notification of the United Kingdom’s intention to withdraw from the European Union has been adopted or even contemplated, that there is no dispute in the main proceedings and that the question referred is actually intended to obtain an advisory opinion on a constitutional issue, namely the correct interpretation of article 50 TEU and of acts adopted pursuant to that article.
21 According to the United Kingdom Government, there is no concrete dispute, since the question referred addresses events that have not occurred and may not occur. The United Kingdom Government submits that it has consistently reiterated its intention to honour the result of the referendum by giving notice under article 50 TEU and thereby withdrawing from the European Union, whether on the basis of an agreement or without any agreement.
22 The question, according to the United Kingdom Government, actually concerns the legal implications of a situation that does not currently exist. It is based on the assumption, first, that there will be an attempt by the United Kingdom, whether at the instigation of its Parliament or otherwise, to revoke the notification and, secondly, that the European Commission or the other 27 member states will oppose that revocation. Only in the event of such opposition would a dispute arise.
23 According to the United Kingdom Government, the lodging of the petition in the main proceedings accompanied by a request that a question be referred for a preliminary ruling in order to obtain an advisory opinion from the court circumvents the rules of the Treaty on the Functioning of the European Union (TFEU) on remedies, standing and time limits.That government submits that the advisory opinion procedure is subject to the rules set out in article 218 (11) TFEU and is available only where a question arises as to the compatibility of a proposed international agreement with the Treaties.
24 The only possible remedies would be direct actions, if the United Kingdom were to revoke its notification and trigger a dispute with the other member states and the EU institutions. Substance…43 The United Kingdom Government has not taken a position on the right, for a member state that has notified its intention to withdraw from the European Union under article 50 TEU, to revoke that notification.”
5 “It is not for the pursuer to “dictate the role that a compearing defender may have in any litigation, or the matters on which such a defender may be heard”. The unconstitutional ambiguity of the Lord Advocate’s position in this action
1.12 This action was duly and properly intimated by the pursuer from the outset to the Advocate General (as representing, in the terminology of the Crown Proceedings Act 1947,the Crown in right of the United Kingdom Government), to the Scottish Ministers (as representing the Crown in right of the Scottish Administration) and on the Lord Advocate in his capacity as an independent Scottish Law Officer acting in the public interest as the relevant constitutional defender of the powers of the Scottish Parliament. The Scottish Ministers originally entered appearance in this action but have since withdrawn from it.
1.13 It is therefore entirely appropriate and indeed necessary for the court- in order to be able to satisfy itself that all relevant parties have been duly called before it – to be clear as to precisely what “hat” the Lord Advocate is now wearing in his continued defence to this action. The Lord Advocate’s defence substantively mirrors and repeats the now withdrawn defences of the Scottish Ministers.
2Cf the position of the Attorney General in Ireland whose office is the subject of specific constitutional provision in the form of Article 30 of the Bunreacht na hÉireann which specifies in Article 30.1. that “there shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this constitution or by law” but in Article 30.4 provides that “the Attorney General shall not be a member of the Government” 3
Under the Irish constitution the holder of the office of Attorney General also exercise more general public interest functions, independently of the Government, in for example taking case to seek clarification of the law and seeking to enforce the Constitution. See for example Attorney General v. X 1 IR 1 per Costello J noting that “Provision is made in the constitution for the office of Attorney General. He is legal adviser to the Government. But in addition the Constitution imposes on him duties which he must fulfil independently of the Government.”
2. THE PRELININARY HEARINGS
In many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments.’ 138. As the Lord President’s remarks make clear, the Scottish Parliament is not a sovereign parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits….
150. Fundamental rights and the rule of law are protected by section 29(2) SA 1998, in so far as it preserves Convention rights. But, as Lord Steyn pointed out inR (Anufrijeva)v Secretary of State for the Home Department UKHL 36  1 AC 604 (para27): ‘[T]he Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum [in R v Secretary of State for the Home Department 2 AC 115 at page 131] applies to fundamental rights beyond the four corners of the Convention.’…
153. [The UK] Parliament did not legislate in a vacuum: it legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, [the UK] Parliament cannot be taken to have intended to establish a body [in the Scottish Parliament] which was free to abrogate fundamental rights or to violate the rule of law.”
2.4 There is simply no basis – and significantly no authority is cited – for the Lord Advocate’s claim that “before Royal Assent … questions of legislative competence are exclusively for those persons identified by the SA 1998 as having a relevant interest in proposed legislation, exercising the powers conferred on them by that Act.”
2.5 Nor is there any support for the Advocate General’s (weaker) claim that “The correct interpretation of the provisions is that those procedures are (implicitly) exclusive, and therefore that this action is contrary to the SA.Es to the procedures are not exclusive, the common law basis for refusing a declarator on the ground of there being an alternative remedy”.
But of course there is no alternative remedy available to the pursuer because the remedies referred to there are purely inter-Governmental, namely a pre-Royal Assent reference by any of the UK law officers to the UKSC on the competency of a Bill as passed by the Scottish Government. This is a process from which the pursuer is excluded (or at least not included)and in any event would come too late for him as it would and could only occur after he has cast his vote for the May 2021 Parliamentary elections.
2.8 Under reference to the opinion of Lord Woolf M R inR v Parliamentary Commissioner for Standards, ex parte Al Fayed at p 670 G-H, counsel for the first respondent submitted, however, that this court should exercise ‘a self-denying ordinance in relation to interfering with the proceedings’ of the Scottish Parliament. Lord Woolf used that expression to describe the attitude which the courts have long adopted towards the Parliament of the United Kingdom because the relationship between the courts and Parliament is, in the words of Sedley L J, ‘a mutuality of respect between two constitutional sovereignties’. The basis for that particular stance, including article 9 of the Bill of Rights 1689, is lacking in the case of the Scottish Parliament. While all United Kingdom courts which may have occasion to deal with proceedings involving the Scottish Parliament can, of course, be expected to accord all due respect to the Parliament as to any other litigant, they must equally be aware that they are not dealing with a parliament which is sovereign: on the contrary, it is subject to the laws and hence to the courts.
For that reason, I see no basis upon which this court can properly adopt a ‘self-denying ordinance’ which would consist in exercising some kind of discretion to refuse to enforce the law against the Parliament or its members. To do so would be to fail to uphold the rights of other parties under the law.
The correct attitude in such cases must be to apply the law in an even-handed way and, subject to the residual discretion described by Lord Watson in Grahame v Magistrates of Kirkcaldy at pp 91-93,to grant to parties the remedy which they seek and to which they are entitled.
2.9 Lord Prosser, concurring with the Lord President, said this (at 357F-358E): “The contention that the court did not have jurisdiction to deal with the issues raised in this case was one I found hard to grasp. As I understood the submissions, the argument seemed to rest upon some broad view that since the Scottish Parliament was a parliament, rather than for example a local authority, the jurisdiction of the courts must be seen as excluded, as an unacceptable intrusion upon the legislative function which belonged to Parliament alone. A variant of this argument appeared to be that if the court’s jurisdiction was not actually excluded as a matter of law, the court should nonetheless be slow or hesitant or reluctant or unwilling to use the jurisdiction which it had, in order to avoid an undesirable intrusion on Parliament’s freedom in relation to legislation.
Both forms of argument appear to me to be entirely without foundation. If and in so far as a parliament may have powers which are not limited by any kind of legal definition,there is no doubt scope for concepts of ‘sovereignty’, with the courts unable to enforce boundaries which do not exist. But if and in so far as a parliament and its powers have been defined, and thus limited, by law, it is in my opinion self-evident that the courts have jurisdiction in relation to these legal definitions and limits, just as they would have for any other body created by law.
If anything, the need for such a jurisdiction is in my opinion all the greater where a body has very wide powers, as the Scottish Parliament has: the greater the powers, the greater the need to ensure that they are not exceeded.
But the jurisdiction of the courts and the legal definition of the body seem to me to be merely two sides of the same coin. Faced with the suggestion that the courts might abstain from exercising a jurisdiction which they have, allowing the Parliament perhaps to exercise power beyond its legal limits, from a fear that enforcement of those limits might be seen as stopping Parliament from doing what it wanted to do, I am baffled: a defined parliament is there to do not whatever it wants, but only what the law has empowered it to do. …[T]he normal remedy for a threatened wrong, interdict, is not available to the court, inconsequence of the provisions of section 40 SA 1998. It is not suggested that there is any other curtailment of what would be the court’s normal remedial powers in relation to the apprehended wrong. An appropriate declarator might be granted, before or after commission of the wrong. …”
10 The legal and constitutional significance of the decision of the Scottish Government to make the referendum an election issue.
2.10 The legal question of whether or not the Scottish Parliament already has the power to legislate for an independence referendum (in accordance with the precise terms of the Scottish Government’s proposed Act of the Scottish Parliament, or otherwise) has been made a central election issue by the current Scottish Government (of which the second defender is a member).
This disputed legal question between the two governments needs to be resolved prior to the Scottish Parliamentary elections in May 2021 as a matter of democratic necessity, in order to allow the pursuer, and all other members of the electorate to the Scottish Parliament, to exercise their individual rights to vote in these elections in a properly informed way.
2.11 The previous suggestion from the Scottish Government when third defenders in this action (which is understood is being maintained by the second defender in his capacity as a member of the Scottish Government) that this legal issue should be clarified only after the Scottish electorate cast its votes in the forthcoming Scottish Parliamentary elections, risks perpetrating a fraud on the electorate.
2.12 It is not properly open to the Scottish Government to campaign for re-election on the basis that, if re-elected to power, it will purport to act beyond the limits of the powers imposed on it by law. It is contrary to the principle of the rule of law for members of a devolved political institution (whether the Scottish Government and/or the Parliament) to assert that an election result confers on them a democratic mandate or authorisation to ignore or purport to override the limits otherwise imposed on it by law. That might hold good for an elective tyranny or despotism, but not for a representative democracy governed by the rule of law.
2.13 In a similar submission from both defenders (which is of highly questionable competence in terms of Scottish constitutional law) the defenders seek to suggest that the access to these courts should be restricted to the privileged few who are elected officials. Both defenders on behalf of their respective governments seek to argue before this court that the public should accept that it is not their role to question politicians. Nothing could be further from the truth.
2.14 The rule of law requires politicians to be held accountable in law and accountable in politics: Cherry and others v Advocate General CSIH 49, 2020 SC 37. The ultimate arbiter of political accountability is the vote from individuals in Scotland at elections. The pursuer, as a campaigner and as a voter, is entitled to seek an answer to the specific legal question of whether the route that is being proposed by a significant proportion of those in favour of Scottish independence is a legally viable route. The answer to that question informs the campaigning and the pressure placed by that campaigning on the elected politicians. With that in mind, one can readily see why both defenders would seek to have this court keep their public “in their place” and allow the politicians to seek to argue from both sides of their mouths.
2.15 The Scottish public are entitled to go into an election, knowing whether those pitfalls exist so that the election votes are cast in full knowledge of the law. It simply does not do in a modern democratic society to require voters to cast their votes where there is a known and wholly fundamental legal ambiguity within the issue that without doubt will be the central issue of the upcoming elections to the Scottish Parliament.
The Law Officers are public servants; it is not their role, nor the role of this court, to require the people to vote blindly and in ignorance of the true position on a legal issue which political parties have chosen to be the centre-piece of their electoral campaign and on which they dispute and offer competing and irreconcilable interpretation.
The significance of Wightman
2.16 Both the Lord Advocate and the Advocate General vainly try to underplay the constitutional significance of the decision of the First Division in Wightman v Secretary of State for Exiting the European Union,2019 SC 111.
2.17 The fact is that in Wightman the First Division – after making a reference to the Court of Justice of the European Union on a substantive issue of EU law (namely whether the notification made by the United Kingdom under Article 50 of the Treaty on European Union (TEU) might be unilaterally withdrawn by it) – pronounced a purely advisory declarator of law. It entertained the proceedings – and ultimately gave the remedy sought by the pursuers- notwithstanding that the UK Government’s repeated position before the court was that even if the notice could be unilaterally withdrawn it would not be, and in circumstances in which there no vote contemplated or ever initiated before the UK Parliament requiring the UK Government to withdraw its notice.
2.18 By contrast the situation in the present case is one in which the pursuer and the 7,000 or so ordinary citizens giving financial backing to this action are undoubtedly and imminently being faced with a vote in the May 2021 elections to the Scottish Parliament. The outcome of these election will determine the political make-up of the next Scottish Government.
The current First Minister, Nicola Sturgeon MSP, has stated that her party’s campaign for re-election will be based on manifesto commitment to introduce a Government Bill legislating for a further independence referendum. Such a promise can only properly be made if and insofar as the provisions of the Bill would be within the legislative competence of the Parliament.
2.20 What this means is that there is indeed a real question of law for this court to consider and determine to allow the pursuer (and all others having the right to vote in these elections) properly to exercise their democratic right and responsibilities as voters. What it also means is that the pursuer undoubtedly has standing qua voter in the forthcoming Scottish Parliament elections to bring this action to have that legal question clarified by this court.
2.22 The positions of the United Kingdom Government and the Scottish Government cannot be reconciled. The Scottish Parliament’s resolution to hold a referendum in 2020, in light of the position of the Prime Minister as set out above, cannot be effected unless such a referendum takes place without any involvement from the United Kingdom Government. The First Minister’s speech on 31 January 2020 indicates that, whilst the consent of the United Kingdom Government would be welcome, other options in the absence of its consent are available. The pleas anent prematurity should accordingly also be repelled.
2.23 For the avoidance of doubt, contrary to what has been suggested by the first defender (although it is not clear on what foundation), this action does not have as its purpose the binding of the hands of the Scottish Government nor the giving of advice to it. Nor is that the effect of the declarators sought by the pursuer. In no way is any government or legislature bound to act or refrain from acting in any particular way as a result of this action. The remedies in this action are sought by the pursuer as informing his campaigning and that of Forward as One and its supporters.
2.24 The pursuer seeks legal certainty prior to the holding of any such referendum so as to prevent the constitutional paralysis which would result from a retrospective determination that an already-held referendum was outwith the legislative competence of the Scottish Parliament. Members of the democratically elected Scottish Parliament – who are accountable to the Scottish electorate, among them, the pursuer – must know, in advance of making such a determination, whether such actions would be intra vires.
Grouse Beater: In a nutshell, the action seeks to prove all countries have a right to self-determination, without exception.
NOTE: These are a few chosen sections from the submission. The full document can be found here: https://www.dropbox.com/s/dhrosjgxxnndgpo/Note%20of%20Argument%20for%20the%20Pursuer%20as%20lodged.pdf?dl=0