Scottish Court of Session Decisions

In this petition the petitioners seek interdict against the respondent Lord Watson of Invergowrie as a member of the Scottish Parliament in relation to his conduct surrounding the preparation and the presentation to the Scottish Parliament of a Bill entitled "Protection of Wild Mammals Bill" (The Bill). At the hearing before me the respondent was represented as was the Parliamentary Corporation which acts on behalf of the Scottish Parliament in relation to legal issues.

A preliminary question arose as to whether or not that latter Corporation should be allowed to appear in the matter which was essentially as stated by counsel for the petitioners an issue between themselves and the respondent. Having heard argument I considered it was appropriate, not least because the novelty of the legislation and of the evolution of the Scottish Parliament, that they be represented through the Parliamentary Corporation and I allowed answers in that respect therefore to be lodged. In the result counsel for the Corporation added little to what was submitted on behalf of counsel for the respondent, albeit she supported that latter position.

The Bill seeks to make it an offence to hunt a wild mammal with a dog or to facilitate hunting in certain ways. The petitioners aver that in terms of Rule 9.14.5 of the Standing Orders of the Scottish Parliament a members Bill may be introduced by a member only if at least eleven other members have notified their support for the proposal within one month's notice of the proposal being given. The Bill received the necessary level of support but awaits a certificate of competence which the presiding officer is required to give in relation to every Bill being presented to the Parliament. Such is likely to be forthcoming and the petitioners understand that the respondent intends to introduce the Bill in the near future.

The petitioners make certain averments that the Scottish Campaign Against Hunting With Dogs ("SCAHD") which is an organisation designed to secure the abolition of hunting with dogs to which end it employs staff and raises funds, has been concerned to promote the Bill and in July 1999 approached the respondent inviting him to sponsor it. It is averred and admitted that SCAHD has provided the respondent with legal and administrative assistance and also drafting advice and the provision of a full time researcher. The respondent admits that he has received such assistance and will continue to do so but it is not disputed that he has not received any actual payment of money by way of a fee or expenses. The essence of the petitioners' position is that by accepting this assistance in the promotion and sponsoring of the Bill the respondent has breached certain rules in relation to members' interest which, it is averred and submitted denies him the right to present the Bill to Parliament.

The general legislative framework is of course the Scotland Act ("the Act") and certain pieces of subordinate legislation relating thereto but in order to focus the matter it is necessary to consider initially the terms of Section 40(3) and (4) of the Act which are in the following terms:

This Section is thus concerned with the jurisdiction of this Court in relation to matters concerning the Scottish Parliament and will require to be considered by me in due course.

Section 39(4) of the Act provides, so far as material, as follows:

I was informed that the Scottish Parliament has not yet enacted any subordinate legislation in relation to this provision but the Westminster Parliament, by Statutory Instrument 1350/1999 (The Scotland Act 1998 (Transitory and Transitional Provisions (Members Interest) Order 1999) has enacted subordinate legislation in terms of transitional provisions in the Act and this I shall refer to as "the Order".

Article 6 of the Order is in the following terms:

It is to be noted firstly that in the interpretation section remuneration is defined as "any salary, wage, share of profits, fee, expenses, other monetary benefit or benefit in kind", and secondly that breach of the Rules is an offence (section 39(6)).

The Order also has provisions requiring members to register certain interests and it is a matter of admission and agreement in the present case that the Standards Committee of the Parliament considered the relationship between the respondent and SCAHD and determined that he was sufficiently connected with that organisation to require him to register his interests with them which he has subsequently done. However the Standards Committee, and this is important in this case, held that he had not breached any advocacy rules such as would stem from Section 39(4) and are currently covered by Article 6 of the Order.

The right of the petitioners to bring this petition, it is averred, proceeds on assertions that they will suffer substantial prejudice in the event that the Bill is introduced and enacted. It is averred that fox hunting is the established way of life for each of the petitioners. The first petitioner earns substantial sums from the Berwickshire Hunt and from his farrier work. In the event that the Bill is enacted he will lose the opportunity to earn these sums. In addition the value of horses used for hunting, including those belonging to the first petitioner, would be affected and the hounds used for hunting would have no value and would have to be put down. The second petitioner is completely dependent on the Duke of Buccleuch's Hunt to earn a living for himself and his family and has no viable alternative options for employment. He occupies a tied cottage on the Duke of Buccleuch's estate and if he were to lose this job he and his family would lose this accommodation. The third petitioner would have to close her business and dispense with the services of her employee, move from her cottage at Thirlestane Castle and lose a substantial part of her livelihood.

As I have indicated there was substantial agreement by way of full and frank admission on the part of the respondent as to his connections with SCAHD but there was a specific denial that anything that had been provided to him had the result of breaching the provisions of Article 6 in the context of Section 39(4) under reference to the phrase "in consideration of any payment or benefit in kind".

In moving for interim interdict counsel for the petitioners focused immediately upon the phrase I have just quoted, and submitted that the word "consideration" should be given its normal meaning which in dictionary terms included the phrase "in return for". While it may be that the respondent had made no gain personally, he nevertheless had received benefits in kind by way of provision of services and assistance which otherwise he would have to provide from some other source and thus those very factors amounted to him acting in promoting the Bill in consideration of a benefit in kind. If the phrase in question was ambiguous then reference could be made to Hansard when the Scotland Bill was going through the Westminster Parliament under the provisions of Pepper v Hart 1993 3 A.C. 593. The relevant clause at the time was clause 22 and passages in Hansard at pages 564 and 569 in the House of Commons made it clear that the Government was demanding the highest standards in respect of the probity of members and what was being struck at was lobbying in any form which involved some form of receipt of the benefit in kind. Similar passages in the House of Lords debates focused on the same position and left the conclusion clearly to be drawn that what was covered was not just the taking of money but action in return from the receipt of any benefit in kind.

Counsel went on to submit that Section 40(4) of the Act did not strike at this application because it was against an individual member of Parliament, and not the Parliament itself and would have had no separate consequences in respect of the Parliament's position if the interdict was granted. It would merely restrain the respondent from presenting the Bill. Thus the relief that was being sought was not even equivalent to that which might otherwise be obtained against the Parliament but only against the individual. The jurisdiction of the Court of Session was not excluded by Section 40 even if remedies were limited in certain circumstances and in any event for such exclusion to be achieved in a statutory based organisation express terms must be found in the statute creating it before such an ouster of jurisdiction by the Court could be regarded as having been achieved.

Counsel also referred to Section 28(5) of the Act which is to the effect that once a Scottish Bill becomes an Act its validity is not affected by any invalidity in the proceedings of the Parliament leading to its enactment. Thus counsel submitted that he had to bring the matter forward at this stage otherwise he would be barred from challenging the Act at the end of the day. Furthermore, he submitted that there was at least a prima facie issue to try of some difficulty which would warrant the granting of an interim interdict (National Duck Labour Board v Arnott Young 1989 S.L.T. 654). The balance of convenience in these circumstances plainly favoured overwhelmingly the respondent's position.

Counsel for the respondent tabled three preliminary pleas which are crucial to this particular issue on a general basis. Firstly, she maintained that it was incompetent for this Court to investigate or consider the internal workings of the Scottish Parliament because it had been allowed to regulate its own affairs. She referred to a considerable number of Sections of the Act which I do not propose to rehearse because, at the end of the day, she accepted that the Court of Session had plainly jurisdiction to consider certain matters relating to the conduct of the Scottish Parliament and the question therefore was whether this was one of them. In this respect she submitted that the effect of Section 40(4) of the Act was that even if an action of interdict was contemplated by the legislation against an individual member of the Parliament, if the consequence of granting such was that it had indirectly the effect of interfering with the Parliament's affairs, direct interference being prevented by sub-section (3), such an application to this Court must be incompetent. She maintained that the effect of granting the remedy sought would be to prevent a Bill otherwise competently proceeding through the Scottish Parliament to proceed and furthermore to suspend or at least disapprove of a decision of the Standards Committee. Both of these aspects she maintained was contrary to the scheme of the legislation. She also relied on Hansard under Pepper & Hart (supra) to the extent that if the issue was ambiguous it was plain from the considerations of Parliament both in the House of Commons and the House of Lords that while limited jurisdiction was being left to the Court of Session the Parliament was primarily being encouraged, if not allowed, to run its own affairs. The fact that the respondent was being sued in his capacity as MSP was almost self evident of the extent to which the Court could not interfere by reason of the proviso to sub-section (4) of Section 40.

However, she embarked on much wider issues. She maintained that the interdict sought was incompetent at common law by reason of the fact that where a statutory remedy is given in respect of an administrative body, be it a fine or the equivalent, the common law excludes the jurisdiction of the Court to apply its own remedies by way of interdict. This proposition was based upon the leading case of The Institute of Patent Agents v Lockwood 1894 21 R. (H.L.) 1 and backed up by the Magistrates of Buckhaven and Methil v The Wemyss Coal Company 1932 S.C. 201.

As will become apparent in the course of this Opinion, I am only at the moment recording the argument which moved on to the question of title to sue both in the context of that proposition, and an issue of interest. In this context the ultimate submission was that assuming there was an actionable wrong in respect of the conduct of the respondent it had to be against the position of the Parliament and its rules and not in relation to a particular individual within the national community. To decide otherwise would be to, it was submitted, lend support to the notion of actio popularis which concept had been authoritatively dealt with to the contrary, in McCormick v Lord Advocate 1953 SC 396 and Gibson v The Lord Advocate 1975 SC 136. Reference was also made to Southern Old People Welfare Council 1987 S.L.T. 179 and Wilson v I.B.A. 1979 S.L.T. 279. Counsel pointed to the fact that there were a number of remedies available to members of the public dissatisfied with the way the Parliament was conducting itself. There were powers to complain by petition in terms of Rule 15 of the Standing Orders and of course it was always available, it was submitted, to any member of the public to lobby their particular MSP. If, it was submitted, there was an actionable wrong committed by the respondent it was against the duties he owed to the Parliament and not to anybody else. The fact that the patrimonial interests of individual members of the public might be affected by the ultimate enactment of a particular piece of legislation did not give them the right to intervene at the start of it on the basis that the promoting member of the Parliament had breached its own rules. In any event, she submitted, as a matter of interest, until such time as the legislation was enacted, there was no reason to assume that the risk that rights of the particular individual might be affected by the terms of the Bill, would necessarily in fact occur by reason of the fact that the Bill might disappear at any stage of its Parliamentary process. The interest therefore claimed, even if there was title, was too remote.

Counsel for the petitioners countered these various aspects by first of all maintaining that Section 40(4) was not ambiguous. There was no need to refer to Hansard and there could be no question that the activities of the Parliament were being infringed by the remedy sought since all that was being required of the Court was to stop an individual doing a specific thing. He maintained strongly that the jurisdiction of the Court of Session was not excluded unless expressly so stated in a particular context and must therefore be available to regulate by interdict the conduct of an individual member of the Scottish Parliament by reason of the provisions of sub-section (4) which plainly contemplated that interdict proceedings were competent against an individual member provided the proviso to the Section was not infringed. As I have already indicated, he repeated in submission that it had not been so infringed because the consequences had nothing to do with the actual conduct of a Parliamentary proceeding. It was, to quote him, not an attempt to interfere with the proceedings of Parliament which he recognised were their privilege in the colloquial sense but rather simply to stop an individual who had committed an actionable wrong from proceeding to act upon it, the wrong being the breach of the advocacy rules which he submitted for the purposes of the present argument I should have to take as established on a prima facie basis for the purposes of an interim interdict.

On the question of title to sue counsel submitted that the averments that he had made that I have quoted which I have to take pro veritate are more than sufficient to show that between title and interest there could be material joining of issues. That was clear from the various passages in Burn Murdoch on Interdict that had been quoted and that insofar as counsel for the respondent sought to suggest that the interdict was incompetent at common law because an alternative remedy had been created in relation to the fact that breach of the advocacy rules was an offence, the Lockwood case did not properly base that proposition because the particular pursuers could have enforced the remedy that Parliament had allowed. In the present case his clients could not do that because the question of whether or not it was an offence to breach the advocacy rules was a matter for the Lord Advocate to consider in bringing any prosecution. There was therefore, he submitted, no authority for the view that simply because an alternative remedy was available in general terms a member of the public with proper title could not bring an action of interdict (see Lord Young in the Court of Session Report of the Lockwood case (20R. 315 at 332)). While he accepted that the locus classicus in relation to title to sue was to be found in Nicol v Dundee Harbour Trustees 1915 SCHL 7 per Lord Dunedin at page 12, the averments he had made so reflected upon the importance of the issue to the patrimonial rights of his client that if it could be connected with the actionable wrong which was the breach of the Parliament rules with regard to advocacy. That was enough, he submitted, to allow a member of the public to bring the issue before this Court under its inherent powers which were not ousted by Section 40.

I heard an excellent debate in the course of one day and I hope that I have recorded the arguments correctly before I proceed to deal with them, albeit that I have indulged in some element of paraphrase and precis.

Normally in an application for interim interdict the appropriate starting point would be to consider whether the petitioners have made out a prima facie case. However in the present case I consider that it is important first of all to consider the validity of the preliminary pleas that have been stated by the respondent which are properly to be regarded as preliminary and if any one of them is successful this would enable me to accede to the request made by counsel for the Parliamentary Corporation that I should not offer any interpretation of Article 6 of the Order since it was a matter entirely for the Parliament itself. I therefore propose to deal with the issues raised by counsel for the respondent in the order that she addressed them.

The first question relates to the general jurisdiction of this Court against the background of competency in this type of application and that requires me to address particularly Section 40(4). In so doing I have to take into account the fact that the Westminster Parliament has plainly not excluded the jurisdiction of the Court of Session, irrespective of the position of the Judicial Committee of the Privy Council, by reason of the terms of Section 102 which allows, paraphrasing, any Court or Tribunal to decide specifically that an Act of the Scottish Parliament or any consequence of such an Act is not within the legislative competence of the Parliament. It is therefore perfectly apparent to me that the legislation so far from excluding the jurisdiction of the Court of Session has enhanced it against what would otherwise be the position with regard to the High Court of Parliament at Westminster where by definition the jurisdiction of any Court is excluded, save its own Court which constitutionally within the United Kingdom it is. Thus it is entitled to have privileges at common law well enshrined in the general law of the United Kingdom. It is almost a trite proposition but it is well enshrined that the Courts will not generally investigate how the Westminster Parliament is conducting its affairs. (See Re Parliamentary Privilege Act 1770 1958 AC 331. These observations are merely designed to focus the fact that in my opinion the Scottish Parliament is a subordinate legislation created by the Westminster Parliament and entitled only to the privileges that that Parliament has specifically conferred in the legislation that it has enacted and I mean specifically because in my opinion if a question arises as to whether or not the jurisdiction of the Court of Session has been ousted by the legislation it must, save in very exceptional circumstances, be expressly stated and not rest on implication. In this respect I do not have resort to Hansard because it is perfectly clear to me in terms of Section 40 that the Westminster Parliament has recognised that the Court of Session, and indeed any other Court with regard to Section 102, may entertain issues which involve declarator in respect of any aspect of the Parliamentary performance, and inter alia interdict in relation to the particular people who can be sued so long as the proviso to sub-section (4) does not apply. In my opinion, therefore, so far as there being an ouster of the Court of Session jurisdiction, the court is firmly established as a regulator in relation to the conduct of the Parliament albeit subject to the very express provisions of Section 40(4).

The relevant word in sub-section (4) section 40 of the Act in my opinion is "effect". Some discussion took place at the Bar as to whether or not the provision in question should be interpreted broadly or narrowly but I consider that the word "effect" is critical. It is obvious in my opinion that what the legislature at Westminster intended in sub-section (3) by reference to the question of declarator and restriction on the remedy of interdict was freedom of action as far as the Scottish Parliament was concerned and that that was to be protected by sub-section (4) by not allowing interference with its affairs which would be not permitted by way of interdict against it directly, to be achieved indirectly through the back door.

In my opinion what is being proposed here by the petitioners is precisely that. They are seeking, through an allegation of a breach of the Parliament rules, the advocacy position which, for present purposes, I take as read, to stop the introduction of a Bill, the competence of which would not be affected by the fact that its promoter had breached the advocacy rules. It would still have been a competent Bill provided the presiding officer had provided the necessary certificate. Thus, by the back door, it is my opinion that what is being sought to achieve here is exactly what sub-section (4) was designed to prevent. It goes further because quite apart from the general power of the Parliament to regulate its own affairs, which was not disputed by counsel for the petitioners, the result of granting this interdict would be effectively to suspend or overturn the decision of the Standards Committee as to whether or not the rules had been breached by the respondent in relation to the question of paid advocacy, a matter which must be for that Committee to determine. I expressly reserve my opinion as to whether or not there might be circumstances in which an interdict against an individual member of the Parliament could be competency achieved in this Court if the proviso to sub-section (4) did not apply. What I consider is being attempted by the petitioners in this case is to achieve, by a roundabout method, the obstruction of the legitimate presentation of a Bill to the Parliament which must be allowed to regulate its own affairs and determine whether or not in its opinion the member is competent to present it. That has already been decided and that this in my opinion is a matter for Parliament and the Standards Committee.

The matter seems to me to be compounded by the fact that if persons such as the petitioners had a legitimate concern, and maybe they have, that the lobbying rules had been breached, it seems to me that their remedy is by way of complaint, petition or even public address. This Court, in my opinion, is not in the position of interfering with legitimate decisions of the Parliament as to its own affairs and certainly not to re-hear a decision that the Standards Committee has already taken. This seems to me to be inherent in what was intended by the proviso to sub-section (4) of Section 40.

Assuming I am wrong about that and that it is competent for the petitioners to be before this Court in this application, the question then arises as to whether interdict is competent at common law.

In this respect counsel for the petitioners argued that the Lockwood case was no authority for the view that simply because an alternative remedy was available, in this case a fine because an offence has been committed, that necessarily interdict at common law by an affected person was not competent. Lockwood, he said, was simply about the fact that where a particular organisation had been given a particular remedy, namely the imposition of fine, it was quite inappropriate to allow them to go to the common law to achieve a much stronger and indeed much more intense remedy, namely that of interdict and the consequences that would flow from a breach of it. Thus, he said, there was no authority for the view that an alternative remedy barred common law interdict. In the present case in any event the petitioners would not prosecute for the stated offence.

I consider, so far as it goes, that this argument is probably correct in as much that where an aggrieved person in the legal sense is at the hands of a third party such as the Lord Advocate or a professional organisation to effect the remedy, he could not be prevented from complaining in legitimate legal process. However I consider this is far removed from the present case. In my opinion the essential question in this case is what is the actionable wrong. Counsel for the petitioners submitted that it was the breach of the rules and if his clients could thus show that as a result they were affected that was enough. With that proposition in its simple terms I do not agree.

In my opinion the actionable wrong, assuming it to have been committed, is against the rules of the Parliament and its Committee. In my opinion it is for the Parliament to decide whether or not in those circumstances the member in question is entitled or not to present the Bill. It seems to me to be a recipe for disaster to allow members of the public who are aggrieved by the potential consequences of a particular piece of legislation to have the right to enter into the procedure of the Scottish Parliament and require this Court to declare that it has misdirected itself. There has been a vast development in the last twenty years of the concept of judicial review but it has always been very carefully orchestrated against the background of Lord Diplock's celebrated dicta which are now too well known to even be recorded. The Scottish Parliament is entitled to make its own determination, in my opinion, upon its own rules and this Court should not even look at it on grounds of irrationality. It may be in due course that if there is a fundamental irrationality in its approach to the legislation it passes such could be challengable by a number of reasons based on its legislative competence upon the view that an organisation that is acting beyond its powers is acting irrationally and therefore not within its competence. In the case of the Parliament that is legislative competence. I offer no further view on that subject. What I am entirely satisfied about is that it is quite inappropriate for pressure groups, or individuals, however their interests may be affected, to have the right to tell, by way of legal action, a Committee of this Parliament that its own view of its own rules is inappropriate or even wrong. That, in my opinion, is far beyond what the legislation contemplated the extent of intervention by the Court of Session would be in the activities of the Scottish Parliament.

The ultimate position of counsel for the petitioners was that the effect on his clients of the enactment of the legislation with regard to fox hunting would be so drastic in terms of their patrimonial position that they were bound to have a title, as well as an interest. The two were merged together. Their interests, he submitted, were so seriously affected that they had every right to pick up the notion of an actionable wrong and connect it with the consequences to them.

In my opinion this represents a leap between the conduct of the particular respondent with regard to the rules imposed upon him in the Parliament and the consequences effect to the petitioners in the ultimate outcome if the legislation is enacted. I do not consider that cases such as Lockwood add very much to the question in as much that what is really at issue here is the right of a member of the public to protect their own patrimonial interest or not as the case may be. I recognise that the petitioners have no right to prosecute or achieve a prosecution for an offence for the alleged wrong but that does not in turn, in my view, give them the right to intervene in the legitimate legislative process of the Parliament. The critical and final decision is that if there is a wrong being committed it is not against the petitioners but against the officials or indeed the Scottish Parliament itself. The Westminster Parliament has legislated for that to be dealt with. That seems to me to be the end of the matter. I am therefore not persuaded that the petitioners have a title to sue in respect of any legal right personal to them which has been infringed by the alleged offending conduct. Their position in my opinion is too remote from that context.

In these circumstances it will be apparent that I propose to refuse the motion for interim interdict by sustaining the respondents' preliminary pleas and not embark upon, as I was asked so to do, consideration of how Article 6 of the Order should be interpreted. However, I would make two observations which are of no binding validity.

Firstly I find it incomprehensible that the current statutory instrument requires members, obviously for understandable reasons, to register sponsors of interests and yet denies them the right, apparently in terms of Article 6, to promote legislation or even participate in the promotion of legislation in which their sponsors are interested. It seems to me that the laudable aims of the Westminister Parliament to try and remove sleaze from politics in a new creation have totally confused how sponsorship can work. It seems to me that the Scottish Parliament, and on my view of things it is entirely a matter for them, should consider very seriously whether Westminister Parliament ever contemplated sponsorship but if it did, the advocacy rules must be amended to allow someone who is so sponsored and has declared it, to promote the relevant interest. Otherwise it seems to me that the work of the Parliament may be hampered, since it must be important that legislation perceived to be in the public interest is properly promoted in consultation with outsiders conversant or experienced in the particular subject.

Secondly I am deliberately refraining from interpreting Article 6 of the Order but I am entirely satisfied that properly what the Parliament at Westminster intended was a total denial of opportunity in the Scottish Parliament for "cash for questions". To my mind the current Article 6 of the Order achieves that and thus I invite the administrators of the Parliament to look at the question of sponsorship, and lobbying and its inter-reaction with Article 6. At the moment that inter-reaction seems to me to be an unsatisfactory compromise.

For the reasons given I will refuse interim interdict, sustain the first three pleas-in-law for the respondent, and dismiss the petition.