Public Law

So it seems the First Minister may have given some ground on whether the Scottish Parliament has the power to hold a referendum on his preferred question (see about halfway down this piece). However, there is still a suggestion that there is some other question the Scottish Parliament could lawfully ask, possibly about independence or perhaps about some unspecified extension of powers. Since the prospect of legal conflict remains, I can finish this series on challenging  a Scottish Parliament Referendum Act without the question being entirely redundant.

Parts One, Two and Three of this series discussed what a challenge would involve, and who could bring one. The remaining question is therefore who would be on the opposing side.

Before any Bill can proceed through the Scottish Parliament, section 31 of the Scotland Act requires the member of the Scottish Executive responsible for it to state that the Bill would in his view be within the legislative competence of the Parliament. The Parliament’s Presiding Officer (currently the SNP’s Tricia Marwick) must also state whether she believes it would be competent. As far as I’m aware no Executive Bill has ever received a negative view from the Presiding Officer (though at least one Member’s Bill has). A Bill can still proceed despite a negative view from the Presiding Officer, though that would be a pretty clear warning to MSPs that it would be unlikely to survive legal challenge.

Strange, then, that Jim Sillars should have been quoted last week as suggesting that the Presiding Officer would face a legal challenge if she certified that the Bill was within competence: “If the PO clears the Salmond bill, then it is she, not he, who will be taken before the courts. If the courts find against her, then she cannot allow the Salmond referendum bill to be tabled”. In fact, since the Presiding Officer’s statement is irrelevant to whether a Bill can be “tabled”, never mind whether it is eventually passed, any challenge to the Presiding Officer’s competence statement would very quickly be dismissed as incompetent.

Even if the Presiding Officer was able to ‘veto’ an incompetent Bill, allowing it to proceed would still not be a decision that could be challenged in court. Any such legal action would almost certainly be thrown out as hypothetical and premature, as it would still be open to the Parliament to vote the Bill down (however unlikely it might be that the current Parliament would vote down this particular Bill!). For the same reason, while the Law Officers can challenge a Bill after it is passed but before it receives Royal Assent, anyone else would probably have to delay a challenge until the Bill became an Act.

So, if the Presiding Officer would not be on the chopping block, who would be responsible for defending a challenge to a Holyrood Referendum Bill? Might the First Minister ‘pull a Tommy’, sack his lawyers and argue the case himself? Alas, no. The question has in fact been settled for some time now, with the Court of Session deciding in Adams v the Scottish Ministers (at paragraph 31) that the Lord Advocate is the appropriate person to defend a challenge to an Act of the Scottish Parliament – not, it should be stressed, because the Lord Advocate is a member of the Scottish Ministers, but because it is his role as a Scottish Law Officer to defend the public interest in the integrity of the statute book.

So that’s the answer to that question. And so we end our trip through the byzantine world of challenging an Act of the Scottish Parliament. Hopefully these posts have enlightened you, or at the very least left you baffled in a different and more interesting way.

If there’s anything you’re not clear on, or if you think I’ve missed something, please feel free to comment below. No name-calling though, that’s what the Scotsman comment threads are for…

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