Public Law

So, we’ve covered what a challenge to Scottish Parliament referendum legislation would mean, and the ability of the UK Government’s Law Officers to bring one. But would anyone else – i.e. Joe McPublic – be able to do so?

Previous direct challenges to Scottish Parliament legislation were all brought by aggrieved individuals, associations or companies who raised petitions for judicial review: countryside campaigners challenging the fox-hunting ban in Adams v Scottish Ministers; insurance companies challenging asbestos-related measures in AXA and others v the Lord Advocate (in which we acted for the insurers); and Imperial Tobacco challenging the bans on tobacco displays and (via a subsidiary) cigarette vending machines. It’s therefore well-established that Acts of the Scottish Parliament can be directly challenged in the courts, though the success rate for such challenges has to date been… not great (well 0% isn’t great, is it?).

Traditionally, a petition for judicial review can be brought by anyone demonstrating a proper “title and interest” in the subject matter (known as “standing” in some jurisdictions). Given the subject-matter of a Referendum Act, that would probably include everyone who would be entitled to vote in the planned referendum. It might even include people who thought they should be allowed to vote but were excluded from doing so under the legislation (e.g. Scots living overseas or elsewhere in the UK, such as this determined young chap).

The category of people able to bring a challenge may in fact be wider still. The Supreme Court effectively decided in AXA that the concept of title and interest in Scottish judicial review cases was too narrow and should be revisited. That decision leaves the exact scope of standing somewhat up in the air, though it seems the question should now be whether the petitioner has “sufficient interest” in the subject matter of the case. That concept will have to be fleshed out in future cases, but it may be that political parties, pressure groups, charities or businesses would be entitled to challenge a Referendum Act if they were so minded.

That’s why I suggested in my last post that the UK Law Officers might decline to refer a Bill to the Supreme Court prior to Royal Assent, as that would turn the legal challenge into a direct confrontation between the UK and Scottish Governments. The UK Government might therefore prefer to let a Bill receive Royal Assent and then wait for other parties to raise a challenge. No doubt at least one of the Law Officers would then intervene to ensure all the relevant issues were raised and given appropriate attention, but such a challenge could not be portrayed as entirely Government-driven and so might be politically preferable. (If no independent challenge was forthcoming the Law Officers should still be able to do it themselves.)

The down-side of that approach would be that a petition for judicial review would appear first of all in the Outer House of the Court of Session. Schedule 6 of the Scotland Act allows a “devolution issue” raised there to be referred to the Inner House, but prohibits the Inner House from then referring it to the Supreme Court even if it would inevitably be appealed there regardless of the outcome. A pre-Royal-Assent referral by a Law Officer would therefore have the advantage of going directly to the Supreme Court (insert your own Monopoly joke here), without the delay and additional work involved in having the question first decided by one or more lower courts.

The next and final point: who would defend a challenge to a Referendum Bill / Act?

Charles Livingstone

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone