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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Whaley & Ors v Lord Watson Of Invergowrie & Ors [2000] ScotCS 41 (16 February 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/41.html
Cite as: 2000 SCLR 279, [2000] ScotCS 41, 2000 SC 340
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Prosser Lord Morison
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P2055/99 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION FOR PETITIONERS in PETITION of JEREMY HAGAN WHALEY, TREVOR ADAMS and JULIA MARGARET FURNESS Petitioners and Reclaimers; against LORD WATSON OF INVERGOWRIE, The Scottish Parliament First respondent; and THE SCOTTISH PARLIAMENTARY CORPORATE BODY, acting on behalf of the Scottish Parliament Second respondents: _______ |
Act: Cullen, Q.C., D. Johnston; Brodies, W.S.
Alt: O'Brien, Q.C., Collins; Balfour & Manson: Dunlop; Scottish Parliamentary Corporate Body Legal Department
16 February 2000
In this petition for interdict the petitioners are Jeremy Hagan Whaley, Trevor Adams and Julia Margaret Furness while the first respondent is Lord Watson of Invergowrie, who is a Member of the Scottish Parliament but not a member of the Scottish Executive. The second respondents are the Scottish Parliamentary Corporate Body acting on behalf of the Parliament. In accordance with the provisions of Rule 9.14.2 of the Standing Orders set out in the Schedule to The Scotland Act 1998 (Transitory and Transitional Provisions)(Standing Orders and Parliamentary Publications) Order 1999 (1999 No. 1095), such members were entitled to introduce two Member's Bills in any session of the Parliament. In about September 1999 the first respondent submitted a draft proposal for a Bill entitled the "Protection of Wild Mammals Bill" ("the Bill") to the Parliamentary Bureau. The Bill seeks to make it an offence to hunt a wild mammal with a dog or to facilitate hunting in certain ways. In terms of Rule 9.14.5 of the Standing Orders, a Member's Bill could be introduced only if at least eleven other members notified their support for the proposal within a month. That requirement was met in the case of the Bill. Under Rule 9.3.1 on introduction a Bill required to be accompanied by a written statement signed by the Presiding Officer indicating whether or not in his view the provisions of the Bill in question would be within the legislative competence of the Parliament. On 2 December 1999 the Presiding Officer signed a statement to the effect that the provisions of the Bill would be within the legislative competence of the Parliament. The first respondent intends to introduce the Bill in the Parliament with a view to its enactment.
According to the averments in the petition the first petitioner earns substantial sums from the Berwickshire Hunt and from his farrier work. If the Bill is enacted, he will lose these earnings. He avers in addition that in that event his horses which he uses for hunting would be reduced in value and the hounds which are kept for hunting would have no value and would have to be put down. The second petitioner lives in a tied cottage on the estate of the Duke of Buccleuch. He avers that he is employed in connexion with the Duke of Buccleuch's Hunt and is totally dependent on it to support himself and his family. If hunting with hounds became illegal, he would be liable to lose both his income and his home. The third petitioner avers that, if the Bill were passed, she would have to close her business, dispense with the services of her employee, move from her cottage at Thirlestane Castle and lose a substantial part of her livelihood.
In those circumstances the petitioners seek interim interdict against the first respondent
"from doing anything in his capacity as a member of the Parliament in any proceedings of the Parliament relating to the proposed Protection of Wild Mammals Bill and in particular from introducing the Bill in Parliament and from encouraging any other Member to do likewise".
As counsel for the petitioners explained their position before this court, the basis upon which they ask for interdict is their averment that by introducing the Bill the first respondent would be in breach of Article 6 of The Scotland Act 1998 (Transitory and Transitional Provisions)(Members' Interests) Order 1999 (1999 No. 1350) which is headed "Advocacy" and which provides:
"Where, at any time after the date on which he was returned as a member, a member receives or expects to receive any remuneration, he shall not -
(a) do anything in his capacity as a member in any proceedings of the Parliament which relates directly to the affairs or interests of, or which seeks to confer benefit upon, the person from whom the member received or expects to receive remuneration or to the affairs and interests of a client or an associate of that person; or
(b) encourage any other member to do anything mentioned in paragraph (a)."
In Article 2(1) "remuneration" is defined as including
"any salary, wage, share of profits, fee, expenses, other monetary benefit or benefit in kind".
I emphasise that before us counsel for the petitioners relied simply on Article 6 of the Order and not on Section 39(4) of the Scotland Act 1998 ("the 1998 Act") which is also mentioned in Statement 7 of the petition and on which the Lord Ordinary appears to have based part of his reasoning. For reasons which I give below, I am satisfied that Article 6 is the operative provision for present purposes.
The petitioners' case for saying that the first respondent would be in breach of Article 6 if he were to introduce the Bill revolves around his position in relation to the Scottish Campaign against Hunting with Dogs ("the Campaign"). It should be stressed immediately that the first respondent has not at any stage sought to conceal his connexion with the Campaign. Moreover, the petitioners acknowledge that he has at all times acted entirely honourably in the matter. The basic facts are not really in dispute, although the legal interpretation of those facts is somewhat controversial. The objective of the Campaign is to secure the abolition of hunting with dogs and, to this end, it employs staff and raises funds. From the time when the Scottish Parliament was set up the Campaign was concerned to promote a Bill to abolish hunting with dogs and in about July 1999 it approached the first respondent and invited him to sponsor such a Bill. The Campaign offered to provide the first respondent with all the necessary legal and administrative assistance and support, including advice on drafting, in relation to such a Bill. The first respondent accepted the assistance and support and agreed to promote and introduce a Bill. The Campaign is continuing to provide administrative support and drafting and legal assistance to the first respondent and proposes to do so in future. In his averments in Answer 2 the first respondent explains that the Campaign paid for legal advice in order to frame the draft Bill and it also seconded an administrative assistant, employed by the Campaign, to assist the first respondent on two days a week with correspondence concerning the Bill. Without the support from the Campaign, the first respondent would be unable to introduce and support the Bill.
The contention for the petitioners is that the first respondent has received the support and assistance from the Campaign in return for agreeing to introduce the Bill. In that situation they say that the support and assistance constitute remuneration in the form of a "benefit in kind" and that the first respondent has therefore received and continues to receive "remuneration" from the Campaign in terms of Article 6(a). That being so, by introducing the Bill he would be in breach of the ban on him doing anything in his capacity as a member in any proceedings of the Parliament which relates directly to the affairs or interests of, or which seeks to confer benefit upon, the Campaign from which he has received and continues to receive remuneration.
The only remedies for the alleged breach of Article 6 which the petitioners specifically crave in the prayer of the petition are interdict and interim interdict, though the court does have the usual power in terms of the prayer "to do further or otherwise in the premises" as shall seem proper. One of the central arguments for the first respondent is, however, that it would be incompetent for the court to grant either interdict or interim interdict in this case because of the terms of Section 40(3) and (4) of the 1998 Act. Section 40(1) provides that proceedings against the Parliament are to be instituted against the Scottish Parliamentary Corporate Body, the second respondents, on behalf of the Parliament. Subsections (3) and (4) are in the following terms:
"(3) In any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.
(4) In any proceedings against
(a) any member of the Parliament
(b) the Presiding Officer or a deputy,
(c) any member of the staff of the Parliament, or
(d) the Parliamentary corporation,
the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been give in proceedings against the Parliament."
In relation to the argument on the competency of a decree of interdict in the present case it is of some importance to notice that Mr. Ben Wallace, M.S.P., made two complaints based on the first respondent's relationship with the Campaign. First, he complained that the first respondent should have registered the support which he had received from the Campaign in the register of members' interests. On 10 November 1999 the Standards Committee of the Parliament decided that the first respondent should have registered the support as sponsorship under paragraph 5 of the Schedule to the members' interests order. I understand that the first respondent has now done this. Secondly, Mr. Wallace complained that the first respondent had breached the advocacy rule in Article 6 by lodging a proposal for the Bill. At the same meeting the Committee concluded that by doing so the first respondent had not acted in breach of the advocacy rule.
After this decision the petitioners initiated the present proceedings in the Court of Session. On 17 November Lord Hamilton granted a first order and continued the petitioners' motion for interim interdict until 24 November. At that continued hearing before Lord Johnston, at which the second respondents were represented, the petitioners renewed their motion for interim interdict against the first respondent. Two days later on 26 November the Lord Ordinary refused their motion and dismissed the petition. The petitioners have reclaimed against the Lord Ordinary's decision.
This is the first time that the court has had to consider the workings of the Scottish Parliament. At various points in his opinion the Lord Ordinary refers to the "rules" of the Parliament and to "the general power of the Parliament to regulate its own affairs". This language does not reflect the true nature of the provisions which regulate members' interests.
Originally, as I have already explained, both the Standing Orders of the Parliament and the provisions on members' interests were contained in transitional orders, made in the one case by Mr. Dewar as Secretary of State and in the other by Mr. McLeish as Minister of State at the Scottish Office. In each case the order was made by statutory instrument under the sweeping powers contained in various sections of the 1998 Act, including Sections 112 and 129(1). But the crucial point is, of course, that the orders, when duly approved by Parliament, became secondary legislation. It follows that, initially, all the procedures of the Parliament were governed by provisions contained in statutory instruments. The provisions therefore had the force of law and had to be observed accordingly. Equally clearly, in the absence of any express indication to the contrary, the courts were the final authority on their interpretation.
That was the position when the case was before the Lord Ordinary and it remains the position with regard to members' interests. But the position of the Standing Orders of the Parliament has changed. Section 22(1) of the 1998 Act provides that the proceedings of the Parliament are to be regulated by standing orders and Schedule 3 prescribes how certain matters are to be dealt with in those standing orders. Since no issue in this case turns on the Standing Orders, it is unnecessary to examine the status which any rules made under Section 22(1) have, except to notice that it does not require that they take the form of legislation. In fact - though no mention was made of this during the hearing of the reclaiming motion - on 9 December 1999 the Parliament used its powers under Section 22(1) to pass a resolution making new Standing Orders which came into effect on 17 December 1999. The new Standing Orders adopted much of the original version but included certain modifications, none of them of relevance for present purposes. The Standing Orders are therefore no longer in the form of subordinate legislation.
It is important to notice, however, that members' interests are dealt with separately and differently in Section 39 of the 1998 Act which is in these terms:
"(1) Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.
(2) Provision shall be made -
(a) requiring members of the Parliament to register in that register
financial interests (including benefits in kind), as defined for the purposes of this paragraph,
(b) requiring that any member of the Parliament who has a
financial interest (including benefits in kind), as defined for the purposes of this paragraph, in any matter declares that interest before taking part in any proceedings of the Parliament relating to that matter.
(3) Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate for preventing or restricting the participation in proceedings of the Parliament of a member with an interest defined for the purposes of subsection (2)(a) or (b) in a matter to which the proceedings relate.
(4) Provision shall be made prohibiting a member of the Parliament from -
(a) advocating or initiating any cause or matter on behalf of any
person, by any means specified in the provision, in consideration of any payment or benefit in kind of a description so specified, or
(b) urging, in consideration of any such payment or benefit in kind,
any other member of the Parliament to advocate or initiate any cause or matter on behalf of any person by any such means.
(5) Provision made in pursuance of subsections (2) to (4) shall include any provision which the Parliament considers appropriate for excluding from proceedings of the Parliament any member who fails to comply with, or contravenes, any provision made in pursuance of those subsections.
(6) Any member of the Parliament who -
(a) takes part in any proceedings of the Parliament without having
complied with, or in contravention of, any provision made in pursuance of subsection (2) or (3), or
(b) contravenes any provision made in pursuance of subsection (4),
is guilty of an offence.
(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) In this section -
(a) 'provision' means provision made by or under an Act of the
Scottish Parliament,
(b) references to members of the Parliament include references to
the Lord Advocate and the Solicitor General for Scotland, whether or not they are such members."
The first point which stands out is that the section lays on the Parliament a duty to make provision, either in an Act of the Parliament or under such an Act, to regulate various matters relating to the interests of members of the Scottish Parliament, including a bar on the advocacy of measures in particular circumstances (subsection (4)). When made, the provisions will, like the provisions relating to members' interests under the transitional order, take the form of legislation, whether in a statute or in an order made under a statute. A member who contravenes any provision relating to advocacy will commit an offence punishable by a fine. Again, there is no question of the matter being regulated by mere "rules" of the Parliament to be administered simply by the Parliament: just as at present, the provisions are to have the status of law and, in consequence, the courts must be the final authority on their interpretation.
Secondly, I have drawn attention to the difference between Section 22, which deals with the Standing Orders of the Parliament and which does not require that they be made in the form of legislation and Section 39, which deals with members' interests and requires the Parliament to enshrine the necessary measures in legislation. This difference in treatment suggests that Parliament viewed the two matters differently.
Standing Orders, dealing with the internal procedures of the Parliament, are to be a matter for the Parliament to deal with in a less formal and, presumably therefore, more flexible fashion. Indeed, even a Code of Conduct is to be laid down in this less formal way. Under Standing Order 6.5.1(b) it is part of the remit of the Standards Committee to consider and report on the adoption, amendment and application of any Code of Conduct for members. On the motion of the Committee, the Parliament can then lay down a Code for its members (Standing Order 1.6.1). Legislation is not required.
Members' interests are in a different category. It is, of course, part of the remit of the Standards Committee to consider and report on matters relating to members' interests (Standing Order 6.5.1(a)). This part of its remit includes considering and reporting on individual complaints of breaches of the relevant provisions. Moreover, in terms of Standing Order 1.7 the Parliament could withdraw a member's rights and privileges if the Committee made such a motion in its report. Doubtless, also, the Standards Committee would have a prominent part in the process of drafting any new or amended provisions on members' interests. In all these respects the Standing Orders envisage an important role for the Standards Committee in relation to members' interests. But, unlike a Code of Conduct, the substantive provisions on members' interests cannot be formulated simply on a motion from the Standards Committee in terms of the Standing Orders. Rather, because of their general importance, members' interests require to be regulated, formally, by legislation.
The importance attached by Parliament to the provisions on members' interests is further emphasised by the fact that, with the exception of subsection (7), Section 39 cannot be modified by the Scottish Parliament (Section 29 of, and paragraph 4 of Schedule 4 to, the 1998 Act). In other words, the Parliament could never decide that it would regulate members' interests simply as an aspect of Standing Orders not having the status of legislation.
Lastly, Section 39 has no direct bearing on the matters with which we are concerned. It is, of course, in force but the Parliament has not enacted any legislation to comply with it. Nor - despite what is said in the petition and at one point in the Lord Ordinary's opinion - is Section 39 in any sense the source of the transitional order which regulates members' interests at present. That order was made, rather, under Section 129(1) which is a general power to make transitional provisions. It follows that, in interpreting the transitional order dealing with members' interests, the court cannot proceed on the basis that its wording and scope have to be measured by reference to the terms of Section 39 and in particular of subsection (4). At most, one might perhaps say that it would be surprising if, having enacted provisions prescribing at least some of the contents of any legislation of the Scottish Parliament on members' interests, Parliament had itself approved a transitional order of significantly different scope.
I have emphasised the origin and nature of the transitional order on members' interests because, at times during the course of the argument for the first respondent before us, it seemed as though counsel wished us to regard Article 6 of the order as in some way a mere matter of the regulation of the internal affairs of the Parliament upon which, preferably, the court should not intrude at all and on which, if the court did intrude, it should do so only with some particular degree of circumspection. In particular counsel stressed that the Standards Committee of the Parliament had considered the question of whether the first respondent had breached Article 6 of the order and had come to the conclusion that he had not. The Committee, rather than the court, were the appropriate body to rule on this matter and the court should respect their decision by exercising a discretion not to grant interdict against the first respondent.
This line of argument found some favour with the Lord Ordinary in a passage which I quote fully, including the opening sentences which have a more direct bearing, however, on another argument for the first respondent about the scope of Section 40(3) and (4) of the 1998 Act:
"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 not be 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 first 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 [sic] 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 [sic] 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 rehear 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."
A little later his Lordship observed:
"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 even to 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 challengeable 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, 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."
These remarks of the Lord Ordinary contain some general observations about the relationship between the courts and the Scottish Parliament which had a bearing on his reasoning and which I am unable to endorse.
The Lord Ordinary gives insufficient weight to the fundamental character of the Parliament as a body which - however important its role - has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law. In the 1998 Act Parliament did, however, put one important limitation on the powers of the court in proceedings involving the Scottish Parliament. In Section 40(3) and (4), which I examine more fully below, it provided that in such proceedings the court should not grant an order for suspension, interdict, reduction or specific performance but might instead grant a declarator; nor should it grant any order against an individual which would have equivalent effect. It is unnecessary for present purposes to consider the position where Community law rights are involved. Cf. R. v. Secretary of State for Transport ex parte Factortame Ltd. [1990] ECR I-2433 at paragraph 21. Subject to Section 40(3) and (4), however, the court has the same powers over the Parliament as it would have over any other statutory body and might, for instance, in an appropriate case grant a decree against it for the payment of damages.
Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, 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. Indeed I find it almost paradoxical that counsel for a member of a body which exists to create laws and to impose them on others should contend that a legally enforceable framework is somehow less than appropriate for that body itself.
Members of the Scottish Parliament hold office by virtue of the 1998 Act and, again, their rights and duties derive ultimately from the Act. Qua members of the Parliament, just as in all the other aspects of their lives, they are in general subject to the law and to the decisions of the courts. Of course, in Sections 41 and 42 the Act makes certain specific provisions to ensure freedom of speech for members of the Parliament and to permit proper reporting of its proceedings. In addition Section 40(4) recognises one particular respect in which the position of members vis à vis the courts is different from the position of other people: in certain situations the courts cannot grant an order for suspension, interdict, reduction or specific performance (or other like order) against them. But the immunity thus granted to the members of the Parliament is not granted in order to afford protection to the members themselves but simply to buttress the immunity of the Parliament from orders of that kind. In other respects the law applies to members in the usual way. In particular - to come to the specific issue in this case - the first respondent is legally bound by the terms of Article 6 of the transitional order on members' interests. If he breaches that Article, then he contravenes the law of the land and indeed commits an offence. The breach may have other consequences which make it proper for the civil courts to notice it.
Since subsections (3) and (4) of Section 40 have been specifically enacted to exclude certain powers of the court in relation to proceedings against the Parliament, the inference must be that in other respects the law applies in the usual way to both the Parliament and to members of the Parliament. Under reference to the opinion of Lord Woolf M.R. in R. v. Parliamentary Commissioner for Standards ex parte Al Fayed [1998] 1 WLR 669 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 Magistrates of Kirkcaldy v. Grahame (1882) 9 R (HL) 91 at pp. 91 - 93, to grant to parties the remedy which they seek and to which they are entitled. In particular, where a competent interim remedy is sought against a member, the correct approach will be to apply the law in the usual way and to have regard to all the relevant factors in deciding where the balance of convenience lies.
These general observations provide a background to the more specific arguments which counsel for the first respondent directed against the petitioners' case. The argument which the Lord Ordinary accepted and which really lies at the heart of his decision relates to the construction of subsections (3) and (4) of Section 40 of the 1998 Act and their application to the facts of this case. In short, the Lord Ordinary held that it would be incompetent to grant the proposed interdict against the first respondent because the petitioners were seeking by a back door to achieve exactly what subsection (4) was designed to prevent. For that reason the Lord Ordinary appears to have felt able not merely to refuse the motion for interim interdict but actually to dismiss the petition at this early stage.
In my view the Lord Ordinary construed subsection (4) too widely. As I have pointed out above and as indeed the Lord Ordinary accepts, subsection (4) exists to prevent parties from circumventing the terms of subsection (3). Subsection (3) provides that the court is not to grant various forms of relief, including interdict, in proceedings against the Parliament. So, for example, the court could not grant an interdict against the Parliament considering a Bill, even if it would not be within the legislative competence of the Parliament. That protection for the Parliament could easily be rendered worthless if, for instance, it were possible for interdict to be pronounced, on the same basis, against the Presiding Officer granting the necessary certificate of legislative competence - which would have the effect that the Bill could not be introduced and hence could not be considered by the Parliament. Subsection (4) outlaws such stratagems. The terms of both subsections (3) and (4) are plainly modelled on the familiar terms of Section 21 of the Crown Proceedings Act 1947 - even down to the use of the term "relief" in a manner which is not altogether usual in Scots law and which is presumably borrowed from the kind of legislation and rules discussed in Guaranty Trust Co. of New York v. Hannay [1915] 2 K.B. 536. The current equivalent rule is R.S.C. Order 15 rule 16 in Schedule 1 to the Civil Procedure Rules 1998.
The purpose of Section 21(2) of the 1947 Act is described in Mitchell, Constitutional Law (2nd edition), p. 309:
"The Act deals with proceedings against the Crown, and provides (s. 21(2)) that no order shall be made against an officer of the Crown if the effect would be to grant any relief against the Crown which could not have been obtained in an action against the Crown. The purpose of this provision is simply to prevent circumvention of the Act by raising actions against officers of the Crown as individuals, and not against the Crown itself."
The passage was quoted with approval by Lord Justice Clerk Ross in Macdonald v. Secretary of State 1994 S.C. 234 at p. 239 G. The significant point is that Section 21(2) of the 1947 Act is designed to prevent parties from obtaining in substance remedies affecting the Crown which they could not obtain in proceedings against the Crown. In the same way Section 40(4) of the 1998 Act is designed to prevent parties from obtaining in substance remedies affecting the Parliament which they could not obtain in proceedings against the Parliament. It follows that subsection (4) applies where proceedings for some legal wrong could lie against the Parliament. In the present case, however, the petitioners seek to interdict the first respondent from breaching Article 6 of the members' interests order - a wrong which could be committed only by a member and which could never be committed by the Parliament itself. Indeed, counsel for the first respondent accepted that in this case there was no wrong by the Parliament which the petitioners could have wished to interdict. In other words, any interdict against the first respondent could not have the effect of interdicting a wrong by the Parliament. That being so, the interdict and interim interdict craved by the petitioners are not rendered incompetent by Section 40(4). That is not, of course, to say that any interdict would not have some effect on the proceedings of the Parliament. Undoubtedly, it would - to the extent, at least, that the first respondent could not introduce the Bill for the Parliament's consideration. But the subsection does not bar a remedy against a member simply because it may have some consequential effects on the working of the Parliament: the bar applies only where the interdict against the member would have the effect of granting relief, i.e. a legal remedy, against the Parliament.
For these reasons I reject the Lord Ordinary's conclusion that the petitioners' craves for interdict and interim interdict are invalidated by Section 40(4) as being in substance a crave for interdict against the Parliament.
Counsel for the first respondent advanced another argument on the basis of Section 40 which the Lord Ordinary accepted. He held that, because, in considering the complaint by Mr. Wallace, the Standards Committee had formed the view that the first respondent had not breached Article 6, the court could not properly consider the matter and reach a different view - since, by doing so, the court would in effect be suspending the Committee's decision. I cannot agree.
In the first place, the terms of the members' interests order themselves show that the Standards Committee - and even the Parliament itself - has no exclusive jurisdiction in dealing with alleged infringements of Article 6. If a complaint were made to the police that a member had acted in breach of Article 6 and had thus committed an offence under Article 8, it would be the duty of the police to investigate the complaint and to report to the procurator fiscal. The prosecuting authorities under the Lord Advocate would then be entitled to reach a view as to whether or not there had been a breach of the Article, irrespective of any decision which the Standards Committee might have reached. It would be for the prosecuting authorities - presumably, in practice for Crown Counsel - to decide quite independently whether all the circumstances warranted prosecution. As in many other cases, this might, of course, involve a delicate judgment. But if the Crown authorities decided that the circumstances warranted prosecution, then it would be the duty of the procurator fiscal to lead the relevant evidence before a sheriff who would reach a verdict. That might in turn result in an appeal to a higher court. The role of the Crown and of the courts would be to consider the whole issue quite independently of any conclusion which the Standards Committee or indeed the Parliament might have reached - whether that conclusion had been favourable or unfavourable to the member of the Parliament. A decision of the Standards Committee constitutes no kind of bar to such proceedings. To hold otherwise would be to undermine both the independence of the Crown authorities and the independence of the courts.
In any event the duty of the Standards Committee is to report to the Parliament in terms of Standing Order 6.2.1. At the time of the hearing before this court it had not yet done so. The Parliament is the body ultimately empowered under Article 7 to impose any parliamentary sanction for an infringement of Article 6 of the members' interests order. The conclusion of the Standards Committee that there had been no breach of Article 6 does not appear to be invested with any finality: the Parliament might reach a different view on the matter. It is unnecessary for present purposes to explore the point further.
The complaint against the first respondent which the Standards Committee considered, though dealing with the same matter as forms the subject of the present proceedings, was not a complaint by the present petitioners, but a complaint by Mr. Wallace. As I have just explained, it is obvious from the terms of the members' interests order itself that a conclusion by the Committee cannot bind the prosecuting authorities. Nor can I see any basis in the order or in any other provision in the legislation for saying that a decision of the Standards Committee or of the Parliament on a particular complaint is to be binding on other persons. In the absence of any provision to that effect, the mere fact that a similar issue is placed before the court by another party cannot, in my view, mean that the decision of the Committee on the earlier (different) complaint is being reviewed by the court. It follows that the grant of an interdict to the parties in this case would not have the effect, which the Lord Ordinary supposed, of granting a suspension of the Standards Committee's conclusion on Mr. Wallace's complaint. If the Committee had reported to the Parliament before the court pronounced any interdict against the first respondent, then the report would stand and it would be up to the Parliament to deal with the report as it thought fit. If it had not already reported to the Parliament, the mere fact that the court had pronounced an interdict against the first respondent in these proceedings would not prevent the Committee from making its report to the Parliament on the complaint by Mr. Wallace. What might in practice have an effect on the Committee would be the terms of any legal decision which the court reached in deciding to grant the interdict. But that would be in no sense objectionable since both subsections (3) and (4) of Section 40 allow the court its full freedom in proceedings involving the Parliament or its members to pronounce a declarator as to the parties' legal position.
For these reasons I reject the contention that by granting an interim interdict against the first respondent the court would in effect be suspending the decision of the Standards Committee on the complaint by Mr. Wallace.
I am accordingly satisfied that there is nothing in Section 40 of the 1998 Act which would render the crave for interdict in this case incompetent. That crave is based on the alleged breach by the first respondent of Article 6 of the members' interests order. We heard considerable argument on the application of Article 6, especially on whether the payments made and the services made available to the first respondent could properly be regarded as "remuneration" within the terms of Articles 6 and 2(1). The point is by no means free from difficulty - especially since the Standards Committee considered that the first respondent had accepted "sponsorship" in terms of paragraph 5 of the Schedule to the order and, in the House of Commons at least, such an interest would appear to fall within the scope of the advocacy rule: The Guide to the Rules relating to the Conduct of Members 24 July 1996, H.C. Papers 688 (1996), paragraph 58. There is, however, no need to reach a concluded view on the point since, somewhat unexpectedly, in the second speech senior counsel for the first respondent conceded that the petitioners' averments disclosed a prima facie breach of Article 6 by the first respondent. That being so, I simply observe that the House of Commons rules reached their present form in response to practical problems which emerged over many years. The Sixth Report of the Committee on Standards in Public Life (Cm. 4557-I, January 2000) chaired by Lord Neill, paragraphs 3.77 - 3.96, suggests that further clarification of the scope of the rules may be desirable.
In these circumstances the critical issue in the case relates to the petitioners' title and interest to bring the present proceedings for interdict and interim interdict of the prima facie breach of Article 6 by the first respondent.
In this connexion counsel for the first respondent sought to persuade us that the members' interests order and in particular Article 6 of the order were concerned to make regulations merely for the benefit of the Parliament rather than for the benefit of the public. The Lord Ordinary accepted this argument, holding that a decision of the Parliament on a complaint of a breach of Article 6 was a decision as to the Parliament's own affairs. Therefore,
"if there is a wrong being committed it is not against the petitioners but against the officials or indeed the Scottish Parliament itself."
I find such an approach somewhat too narrow. The Scottish Parliament has not been created for its own benefit but as part of a wider programme of constitutional legislation which Parliament has passed with a view to improving the government of the United Kingdom as a whole. This benefit to the country and its people is to accrue from inter alia the Acts setting up a parliament in Scotland and assemblies in Wales and Northern Ireland. The Scottish Parliament has therefore been created with the intention of improving the government of Scotland within the United Kingdom and so, at the very least, with a view to benefiting people living in Scotland. The provisions which regulate the interests of the members of that Parliament are designed to promote that objective by ensuring that members act and are seen to act in the general interest of the public as a whole. I have already pointed out that the public interest in the provisions on members' interests is recognised by the requirement in Section 39 that they should be enshrined either in an Act of the Scottish Parliament or in subordinate legislation made under such an Act. The present measures are, of course, contained in subordinate legislation made by Westminster. A similar pointer to the public interest in these provisions is that breaches, including any breach of the advocacy rule, constitute a criminal offence, both under the transitional order and under any provisions to be enacted by the Scottish Parliament. Finally, in terms of Article 9 "any person" may inform the Presiding Officer if he considers that a member has taken part in the proceedings of the Parliament in contravention of Article 6. This provision, which mirrors the position in the House of Commons where a complaint can be made to the Parliamentary Commissioner for Standards (Erskine May's Parliamentary Practice (22nd edition), p. 427), shows that members of the public as a whole - far beyond the Parliament itself - are recognised as having a legitimate concern in seeing that members comply with the requirements of the order.
I have therefore no doubt that a breach of Article 6 is a wrong which is of concern not simply to the Scottish Parliament and its officials but to all those people for whose benefit the Parliament has been established and many of whom are entitled to elect its members. They include the present petitioners. It can fairly be said that, if the Bill ever became an Act, it would have significant effects on the petitioners' livelihoods. I should therefore tend to the view that, if the intention of Parliament was to confer on members of the public a right to secure that a member of the Parliament complied with Article 6 of the order, then prima facie the petitioners would have the necessary interest to pursue the proceedings - though I readily accept that any final view on that matter would require to take account of the important points made by Lord Prosser about the indirect nature of the effect of any wrong on the petitioners' interests.
In the light of the argument presented to us I am satisfied that this court has jurisdiction to decide whether members of the public have a right to prevent any breach of Article 6. I have, however, reached the view that Parliament did not intend to confer a "civil" right on a member of the public to secure compliance with Article 6. It follows that, however significant his or her interest, a member of the public has no right to prevent a threatened breach of that Article by bringing proceedings for interdict against the member concerned. In coming to that view I have had regard to a number of factors.
First, unlike Wilson v. Independent Broadcasting Authority 1979 S.C. 351, this is not a case where Parliament has prescribed a duty but has provided no sanction for breach of the duty. In cases of that kind it can readily be assumed that a right of civil action accrues, since otherwise "the statute would be but a pious aspiration": Cutler v. Wandsworth Stadium [1949] A.C. 398 at p. 407 per Lord Simonds. Here, by contrast, breach of Article 6 constitutes an offence for which the member can be prosecuted. Especially where, as here, the duty is owed to members of the public generally, rather than to particular persons, the inference will tend to be that prosecution was intended to be the means of securing compliance with the provision.
Secondly, the order provides a sanction, short of prosecution, for breach of Article 6: under Article 7(2) the Parliament may exclude the member from proceedings of the Parliament for such period as it may consider appropriate. Presumably if anyone exercised his right under Article 9 to make a complaint of a breach of Article 6, this could lead to the Parliament imposing an appropriate sanction on the member under Article 7(2). This type of sanction can again be regarded as a specific means of securing compliance with Article 6. As such, it tends to suggest, though not conclusively, that members of the public are not intended to have a right to institute civil proceedings in respect of any breach of the Article.
The matter goes further, however. Although the order makes provision for these two kinds of sanctions, they are both retrospective. In other words, they bite only after, and not before, the breach takes place. No express provision in the order gives power to the Parliament or any member or official to prevent a member from taking any step in breach of the order. This is unlikely to be a matter of chance - and indeed in a brief comment Miss Dunlop, who appeared on behalf of the Parliamentary Corporate Body, observed that the order had been deliberately drafted in this way. Unfortunately, due to pressure of time she was unable to elaborate her submission. In this context also, however, it appears to me relevant to recall that the provisions on members' interests have been drafted in the light of the similar provisions which operate in the House of Commons. A convenient account of the relevant rules is to be found in Erskine May's Parliamentary Practice, Chapter 20. Although counsel did not make submissions on the point, the text of the relevant Code of Conduct for members of the House of Commons was among the documents placed before the court. A comparison of the Westminster rules and the provisions of the Scottish order leaves no room for doubt that, very sensibly, the Westminster rules were used as the model. It is therefore significant that there appears to be no specific power by which a member of the Westminster Parliament can be restrained in advance from carrying out an act which would infringe the rules on members' conduct. The system provides for retrospective sanctions, such as suspension from the service of the House of Commons for a period, imposed by the House in the light of a report from the Committee of Standards and Privileges. There is, or course, no room for an interdict or injunction at the instance of any interested member of the public, even though he or she can complain to the Commissioner for Standards.
The order which regulates the position in the Scottish Parliament has introduced a broadly similar system. In the absence of detailed submissions on the point, I would only say that such a system can be seen to have advantages, not least in minimising the scope for disruption of the legitimate business of the Parliament with what could be - as the present case proclaims - contentious issues about the application of the relevant provisions in a particular situation. Moreover, under such a system members of the Parliament can always take account of any breaches of Article 6 in deciding whether to pass a Bill.
For these reasons the conclusion which I have reached on the basis of the submissions which we heard at this interim stage is that Parliament actually intended that there should be no power to prevent members of the Scottish Parliament from breaching Article 6 of the members' interests order. The intention was that the Article should be enforced by means of retrospective sanctions only. It follows that Parliament cannot have intended to confer a right on the petitioners or anyone else to secure compliance with Article 6 by bringing proceedings for interdict to prevent a threatened breach. On that basis I have come to a clear conclusion that the petitioners are unlikely to obtain a final decree of interdict against the first respondent.
The only motion which was before the Lord Ordinary was the petitioners' motion for interim interdict. I cannot say that the petitioners' case is not arguable. On the contrary, it was argued to considerable effect in a hearing which ran over into a third day. None the less, having considered the arguments, I have concluded that the petitioners' case is unsound. That conclusion does not depend on any particular view of the facts which might be altered by a proof. On the contrary I have proceeded on the basis that the petitioners could prove their averments about their particular financial and other interests. There was no suggestion that a proof would significantly alter the picture of the relationship between the first respondent and the Campaign. And, again, I have proceeded on the concession that prima facie the first respondent was in breach of Article 6. The decision appears to me to turn ultimately on the construction of the members' interests order. On that matter we heard very full submissions. This is, accordingly, a case where the court is as well placed at this interim stage to decide the central legal issue in the case as it would be after a proof or any other further procedure.
That is a significant factor in assessing the balance of convenience in this case since, on the other side, it can properly be said that, unless interim interdict is granted - or the first respondent gives an equivalent undertaking not to introduce the Bill - the first respondent will be free to take the critical step of introducing the Bill before the case can proceed further. Moreover, once the Bill is introduced, it can go through all the stages in the legislative process without the first respondent's active participation. Even more significantly, once the Bill is enacted, the validity of the resulting Act is not affected by any invalidity in the proceedings leading to its enactment (Section 28(5) of the 1998 Act). It follows that the only opportunity for the petitioners to stop the Bill on the ground that the first respondent is introducing it in breach of Article 6 is before he actually introduces it. Once he takes that step, the moment has passed.
Despite these powerful factors which can be advanced on behalf of the petitioners, I have come to the conclusion that the balance of convenience does not favour the grant of interim interdict since the issue turns on the construction of the members' interests order and not on any matters of fact which remain to be clarified. We have heard full legal submissions on the point and I have considered the matter on the most favourable version of the facts from the petitioners' point of view. On that basis I have concluded that the petitioners' case is unsound. That being so, it appears to me that an interim interdict would serve no legitimate purpose. On the other hand, it would prevent the first respondent from introducing a Bill which has the necessary support from other members and which the Presiding Officer has certified to be within the legislative competence of the Parliament. While the first respondent could point to no particular reason why this Bill should be considered by the Parliament in the near future, other things being equal, it would seem to be in the public interest that a member who has a Bill which is drafted and ready to be considered by the Parliament should be able to introduce it as soon as he is ready to do so.
For these reasons I would recall the Lord Ordinary's interlocutor dismissing the petition and sustaining the first respondent's first plea-in-law. Quoad ultra I would adhere to the Lord Ordinary's interlocutor in so far as he refused the petitioners' motion for interim interdict.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Prosser Lord Morison
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P2055/99 OPINION OF LORD PROSSER in RECLAIMING MOTION FOR PETITIONERS in PETITION of JEREMY HAGAN WHALEY, TREVOR ADAMS and JULIA MARGARET FURNESS Petitioners and Reclaimers; against LORD WATSON OF INVERGOWRIE, The Scottish Parliament First Respondent; and THE SCOTTISH PARLIAMENTARY CORPORATE BODY, acting on behalf of the Scottish Parliament Second Respondents: _______ |
Act: Cullen, Q.C., D. Johnston; Brodies, W.S.
Alt: O'Brien, Q.C., Collins; Balfour & Manson: Dunlop; Scottish Parliamentary Corporate Body Legal Department
16 February 2000
I agree with your Lordship in the chair that the petitioners' motion for interdict should be refused, and to that extent I would adhere to the interlocutor of the Lord Ordinary. However, I am satisfied that the Lord Ordinary went too far in dismissing the petition and sustaining the first plea in law for the respondent, and I would recall his interlocutor to that extent.
The petitioners seek interim interdict against the respondent from doing anything in his capacity as a member of the Scottish Parliament "in any proceedings of the Parliament relating to the proposed Protection of Wild Mammals Bill and in particular from introducing the Bill in Parliament and from encouraging any other Member to do likewise". They aver that the respondent intends to introduce the Bill and to advocate its cause in the Scottish Parliament "in consideration of benefits in kind" provided to him by the Scottish Campaign against Hunting with Dogs. The legal basis for seeking interdict, as stated in the petitioners' pleadings, is that in the circumstances the proposed conduct of the respondent constitutes a contravention of section 39(4) of the Scotland Act 1998 (which as your Lordship has pointed out is not in point) and Article 6 of the Scotland Act 1998 (Transitory and Transitional Provisions)(Members' Interests) Order 1999 "and a civil wrong". It did not appear to be suggested that the respondent's actions would constitute a civil wrong if there were no contravention of Article 6. The essence of the petitioners' case thus appears to be (a) that these actions would constitute a contravention of the requirements of Article 6, and (b) that this apprehended contravention would constitute a "wrong" done to the petitioners (or putting the matter the other way round, an infringement of rights conferred upon them by the provisions of Article 6). In addition to these two fundamental issues, questions arise as to the court's jurisdiction and the competency of interdict as a remedy in the circumstances. Moreover, assuming that the petitioners have a prima facie case in these various respects, there is a question as to the balance of convenience in granting or refusing interim interdict.
Your Lordship in the chair has set out the factual averments which are in point, and the legal context. There is no need for me to repeat or enlarge upon the factual or legal context. Moreover, I am in full agreement with your Lordship in relation to what one may call the two preliminary issues - jurisdiction and the availability of interdict - and the further issue (an academic one, given my conclusions on the other matters) of balance of convenience. Such brief comments as I make in relation to each of these three issues are made only because I think they help to fill out the background to my observations and conclusions on the two crucial elements in the petitioners' case - the assertion that the respondent's proposed conduct constitutes a contravention of Article 6, and the claim that this contravention would constitute an infringement of a right conferred upon the petitioners by Article 6.
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. In the odd, and perhaps unsatisfactory, context of "sovereign" or undefined powers, the courts may be faced with problems; but these are very precisely problems of a kind which do not arise, and can afford no guidance, where the issue is one of law, and jurisdiction is its inevitable counterpart. The nature and functions of the Parliament, and of any particular provisions, will of course be matters which must be taken into account, whenever the courts in exercising their jurisdiction require to interpret or apply the provisions which the law has made in relation to the Parliament. But that is a quite different matter.
On the basis that the issues in this case fall within the court's general jurisdiction, it will be the court's function not merely to determine questions as to the existence of rights, and actual or threatened infringement of those rights - matters to which I shall come in due course - but also, in relation to any actual or apprehended infringement of right, to determine the consequential question of remedy. The only remedy which requires specific consideration in this case is that of interdict (and at this stage interim interdict). And the contention advanced on behalf of the respondent is that even if the petitioner has a prima facie case revealing a threatened wrong, the normal remedy for a threatened wrong, interdict, is not available to the court, in consequence of the provisions of section 40 of the 1998 Act. 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, and once the wrong had been committed, none of the remedies which would otherwise be available is said to be excluded. But none of these other remedies is at present sought.
The contention is simply that interdict having been made incompetent by section 40, interim interdict cannot be pronounced, and the Lord Ordinary's decision should be upheld upon that basis. As your Lordship has pointed out, subsections (3) and (4) of section 40 contain provisions of a type familiar from section 21 of the Crown Proceedings Act 1947, and evidently derive from that source. The broad purpose of these subsections is thus clear: the courts are in no way deprived of their primary function, of identifying wrongs or threatened wrongs, but apart from declarator, the only remedy available, where these subsections apply, will have to take the form of a remedy after the event. And it is clear that subsection (4) is enacted in order to ensure that subsection (3) is not deprived of its intended effect by orders being pronounced against others.
Considering matters generally, I have some difficulty in reaching any clear view as to the scope of subsection (4). It is concerned with the "effect" of making an order of interdict or the like against any of the persons specified in the subsection. And in considering whether it could make such an order, the court would have to decide whether the effect of its order "would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament". Since the order in question is plainly not an order against the Parliament, it does not itself give any relief against the Parliament. What is envisaged is that while giving relief in a legal sense against others, it may have the effect (in practical terms, as it seems to me) of giving a relief against Parliament which could not have been given in proceedings against the Parliament. If one is thus concerned with the practical effects or consequences of a given order, it seems to me that the order itself might be dealing with, and interdicting, actions or conduct of a kind very different from anything that Parliament itself might do. Moreover, turning to the effects or consequences of the order, it seems to me that they too might, and perhaps often would, consist of, say, some individual being disabled by the order from taking some action of a kind quite different from the actions of the Parliament which provide the actual or hypothetical context for subsection (4). Putting matters broadly, therefore, I see some force in an argument to the effect that if subsection (3) prevents one from obtaining an interdict against the Parliament from enacting a Bill, then subsection (4) may mean that one cannot obtain, against any of the persons there mentioned, an interdict the immediate and express effect of which is to prevent that person from taking some action, if the "effect" of his being unable to take that action is to prevent the Bill being enacted. And such an analysis might have additional force if, as I think is the position here, one has a petitioner who relies upon apprehended damage to his interests flowing not from the immediate actions which he seeks to interdict, but from the consequence which he fears would follow - the enactment of the Bill by the Parliament. In the particular circumstances, however, I do not dissent from your Lordship's analysis of this issue; and I mention these misgivings mainly for the bearing which I think they have upon questions which I have yet to consider. In any event, the conclusions that I reach in relation to those questions are such that the competency of interdict is not, for me, a determinative issue in disposing of this appeal.
It is convenient at this juncture to make such brief comments as I think appropriate on the question of balance of convenience. Considering as I do that the petitioners have failed to present a prima facie arguable case to the effect that they have a right which they apprehend will be infringed by the respondent, the question of balance of convenience is, for me, academic. But having regard to the considerations mentioned by your Lordship in the chair, and the sequence of events which would have to follow upon introduction of the Bill before the Parliament might choose to enact it and thus (and then only) damage the petitioners in the way they aver, I am satisfied that even if there were an arguable case on the merits, the balance of convenience favours allowing matters to proceed and refusing interim interdict.
This brings me to what I see as the two essential elements in the petitioners' claim that they apprehend a wrong. Does the respondent's proposed conduct constitute a contravention of Article 6? And if so, does the contravention constitute an infringement of some right conferred upon the petitioners by Article 6?
Senior counsel for the respondent conceded that the circumstances disclosed a prima facie breach of Article 6. This was, as your Lordship says, somewhat unexpected - indeed, speaking for myself, I found it hard to understand. Be that as it may, the result is that we need not reach a concluded view on this matter. That being so, discussion of the point is perhaps unnecessary, and may be seen as undesirable. But I think some comment is appropriate: while the petitioners' pleadings and grounds of appeal cast no real light on what their contentions might be, there was substantial discussion of this point before the concession was made, and in any event it seems to me to provide a useful background for consideration of the final issue, as to whether a contravention would constitute an infringement of the petitioners' rights.
Understandably and perhaps inevitably, the terms of Article 6 reflect the traditions and techniques of Westminster draughtsmanship. These no doubt have their advantages. But having tried, over many years, in non-judicial contexts, to point out what I see as fundamental disadvantages in these traditions and techniques, and having more recently expressed the fervent hope that the Scottish Parliament might make a radical break away from that type of draughtsmanship, I think that it would be unrealistic for me, in considering Article 6, to pretend that I see it as a satisfactory or clear expression of what Parliament intended. As usual, Parliament abstains from identifying either the problem which it is trying to meet, or the result which it hopes to achieve. The courts are thus faced not with the task of applying a readily identifiable principle, but with contemplating a net of words, and wondering what it was meant to catch.
In such circumstances, it might be said that almost any construction of such provisions is "arguable". But it seems to me that certain quite firm indications of the subject matter of Article 6 can be seen amidst the words used. "Remuneration" is evidently something which is "received" from another person, and not just some collateral advantage which may accrue. And the description of the conduct which is forbidden by Article 6 seems to me to show (like the heading "Advocacy") that the basic mischief with which the Article is dealing, is, as it is often described, paid advocacy. Against that background, the definition contained in Article 2(1) is apparently designed to ensure that "remuneration" is to be read as including not only pay in a strict sense, but substitutes for pay. The word "remuneration" is defined as including a number of specified types of receipt (themselves undefined). While such a definition of course has the effect of widening the meaning of "remuneration" beyond the limits which it might have if undefined, the words used in the definition must in my opinion be read in the context of, and coloured by, the basic concept of "remuneration". One may compare I.R.C. v. Plummer [1980] AC 896, in which "settlement" was defined as including "any disposition, trust, covenant, agreement or arrangement..." but despite the great width of these final words was held not to extend to settlements which did not contain an element of bounty. In the present case, the expression "other monetary benefit or benefit in kind" is to be read as being not merely concerned with benefits (as opposed to all receipts) but in my opinion with benefits which are remunerative, rewarding the recipient (as payment of an ordinary salary or fee would) for services rendered. The word "expenses" may at first sight appear to go against such a construction, but in the real world it seems to me that it is familiar for payment of "expenses" to exceed outlays and to bring personal gain. The list contained in the definition seems to me to be a list of ways in which a member might personally "get something out of" his advocacy by way of personal gain.
What these provisions do not appear to me to deal with is a quite distinct matter, which may well be seen as a potential mischief requiring regulation, and which can arise whether or not a member of the Parliament obtains some personal reward for advocacy. In counsel's submissions to us, there was considerable discussion of the way in which outside bodies may, at perhaps considerable expense, carry the burden of preparing possible legislation, in which they have an interest, and in circumstances where those with contrary interests may lack the means to produce an equal or opposite effort. Such an imbalance can be seen as inequitable, and contrary to the public interest where legislation is involved. If Article 6 can be read as an attempt to regulate that problem, it might be that it would cover activities such as those which arise in this case. But while stopping short of a concluded view, I cannot at present find anything in Article 6 or Article 2(1) which seems to go beyond the problem of paid advocacy (with its obvious risks of loss of independence, and improper influence), or which seeks to achieve some kind of equitable equality of arms between those who are for or against some piece of legislation, or indeed between different persons or groups, each seeking priority for items of legislation. It seemed to me to emerge from the submissions made to us that that would be an intractable problem. And in a participatory democracy, it would be surprising if outside effort were neutered, and useful input to legislation limited, in the name of purity, to legislators and their servants. I see these as problems, but not as problems with which Article 6 concerns itself in any way. I would add that while section 39(4) is not at present in point, it also seems to me to be concerned with paid advocacy rather than this wider problem. In any event, when the Scottish Parliament undertakes legislation in terms of that subsection, there will at least be an opportunity for a new provision which is clear in its intentions. The actions of the respondent, as averred by the petitioners, may be examples of this wider problem. I cannot see them as remunerated.
I come to the final question. Assuming that the proposed conduct of the respondent would constitute a contravention of Article 6, would that contravention constitute an infringement of rights which the petitioners have under the Article? In my opinion it would not, and the petitioners have made no arguable case to the effect that it would. Your Lordship in the chair has drawn attention to various matters which demonstrate the "public" nature of the requirements contained in Article 6. While I entirely agree that there are specific indications that there is a public interest in these requirements and their enforcement, and that there are aspects of the nature of the Parliament which confirm this, I suspect that these simply reflect a more fundamental truth - that any public body (which the Parliament plainly is) is by its nature a matter of public concern, so that one can really say a priori that if it is a public body, there is a public interest in any legal requirements which regulate its proceedings. There is thus inevitably a public interest in compliance with the rules which regulate these proceedings: but while the scope and meaning of such rules remain matters within the court's jurisdiction (as I have already held), neither that fact nor the public interest in compliance alters the fact that they are indeed rules designed to regulate the body's proceedings.
In this particular instance, there is in my view a plain public interest in the nation's Parliament being untainted by (putting it shortly) members acting in proceedings of the Parliament as paid advocates. However, I think that one can say much the same of countless other public bodies which are regulated by law; and it does not seem to me to follow that this general interest in public bodies, and in their members complying with the rules which regulate them, carries any implication that the legislation containing such rules was intended to confer upon individual members of the public a right to enforce these rules, even if the general interest in compliance is coupled with some individual interest which will be affected by non-compliance. Whether there is such an entitlement, so that a breach of the rule is also an infringement of personal rights, appears to me to depend on construction of the rules, and discovery of what was intended.
Consistently with Westminster traditions of draughtsmanship, the 1999 Order does not explicitly say, in Article 6 or elsewhere, whether it is designed to protect any interests of members of the public or if so what kind of interests, or whether there is any intention to confer upon members of the public a right to compliance with the requirements of any Article, so that any non-compliance with such requirements will constitute an infringement of rights, and entitle them to say "I have been wronged", and to seek some appropriate remedy at law. Any right and title must depend upon implication.
Wherever there is a legal provision which lays down a requirement, with consequences flowing from non-compliance, one will of course expect to find some mechanism for enforcement, or some sanction for non-compliance. Such mechanisms and sanctions may of course take the form of an express or implicit right to compliance, conferred upon individuals or other legal persons, enforceable at law. But the civil law of rights and wrongs is not the only possible mechanism for enforcement or sanction. As your Lordship has noted, in the present case there is express provision for both criminal and Parliamentary consequences in the event of breach. Where a provision is concerned, as here, to protect a public body from improper conduct by its members, and is essentially a "rule" regulating such conduct, it seems to me that the natural expectation would indeed be that there would be sanctions of the type which one finds in the Order rather than the introduction of a structure of individual civil rights and wrongs. Such a general interest of the public may well be best and most sensibly protected by public rather than individual mechanisms of enforcement or sanction. Given these express provisions, I see no need to read into the requirements an intention to confer civil rights. No such inference flows from the court's overall jurisdiction.
That view is in my opinion confirmed by other considerations. I have already mentioned the fact that in my opinion the Article is not concerned with such individual interests as will exist in relation to a particular piece of legislation, but with the interest of all citizens in having a Parliament whose procedures are untainted by paid advocacy. But your Lordship has drawn attention to another pointer: the fact that the sanctions which are provided are retrospective only. That also is in my opinion at least indicative of an intention in the Order to allow Parliamentary procedures to continue, notwithstanding a breach of Article 6. The primary question in relation to title is no doubt whether an individual citizen is being given a right to compliance, with his right to a remedy being consequential. But it appears to me that if there had been any intention to confer upon individual members of the public a right to compliance with Article 6, when their interests were affected, one would have expected to find provisions dealing with the crucial question of whether those who enjoyed such rights were entitled to intrude upon the activities of Parliament and its members by obtaining interim interdict - a type of intrusion which I regard as not unlike that which is excluded by section 40 of the 1998 Act. Again, the courts' overall jurisdiction carries no implication that they must hold individual rights to have been conferred, either to have a breach treated as an infringement of right, or to use interdict as a remedy.
Further confirmation that the Order is not concerned to create civil rights is found, in my opinion, if one considers the relationship between the supposedly wrongful conduct and the detriment to private interests which is said to follow from it. The conduct which the petitioners seek to interdict has a direct impact upon the interest which these petitioners share with everyone else - an interest in compliance with the Article. But it has no direct effect upon the personal and patrimonial interests upon which they rely in this case. Those interests will only be affected if the Act is passed. While it can be said that that is likely to follow upon the infringing conduct, it will only do so if the infringing conduct is followed by many other acts by many other people. The Article does not appear to me to have in mind, or to be intended to protect, interests which may be detrimentally affected by the passing of an Act. And such causal connection as there may be between the apprehended breach and the eventual detriment to personal interests seems to me to be such that any breach will usually be at most a causa sine qua non, rather than a cause of damage in the sense required for a claim for damages. (That is particularly true when, as in this case, enactment would follow upon a known breach). The very fact that it is difficult to envisage any remedy after the alleged damage has been done by the Act being passed in my opinion confirms that we are not here in the world of civil rights and wrongs.
In the whole circumstances I would refuse interim interdict.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Prosser Lord Morison
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P2055/99 OPINION OF LORD MORISON in RECLAIMING MOTION FOR PETITIONERS in PETITION of JEREMY HAGAN WHALEY, TREVOR ADAMS and JULIA MARGARET FURNESS Petitioners and Reclaimers; against LORD WATSON OF INVERGOWRIE, The Scottish Parliament First Respondent; and THE SCOTTISH PARLIAMENTARY CORPORATE BODY, acting on behalf of the Scottish Parliament Second Respondents: _______ |
Act: Cullen, Q.C., D. Johnston; Brodies, W.S.
Alt: O'Brien, Q.C., Collins; Balfour & Manson: Dunlop; Scottish Parliamentary Corporate Body Legal Department
16 February 2000
The petitioners are persons with an interest in hunting foxes with hounds. The first respondent is a Member of the Scottish Parliament, who has in that capacity submitted to the Scottish Parliament a draft Bill entitled the Protection of Wild Mammals Bill ("the Bill") which would make it an offence to hunt a wild mammal with a dog or to facilitate hunting in certain ways. The second respondents are a body who act for the Scottish Parliament in relation to legal issues and whom the Lord Ordinary allowed to be represented at the hearing before him. The petitioners seek interdict and interim interdict against the first respondent from doing anything in his capacity as a member of the Parliament in any proceedings of the Parliament relating to the proposed Bill, and in particular from introducing it in Parliament. The stated ground on which interdict is sought is that such conduct constitutes a contravention of section 39(4) of the Scotland Act 1998 ("the Act") and of Article 6 of The Scotland Act 1998 (Transitory and Transitional Provisions)(Members' Interests) Order 1999 ("the Order"). Section 39 of the Act is an enabling provision the terms of which are set out in your Lordship's Opinion and which provides for legislation in respect of members' interests but which, as your Lordship has observed, is not the source of the Order. The Order came into force on 4 June 1999. Article 6 thereof is headed "Advocacy" and provides as follows:
"6. Where, at any time after the date on which he was returned as a member, a member receives or expects to receive any remuneration, he shall not -
(a) do anything in his capacity as a member in any proceedings of the
Parliament which relates directly to the affairs or interests of, or which seek to confer benefit upon, the person from whom the member received or expects to receive remuneration or to the affairs and interest of a client or an associate of that person; or
(b) encourages any other member to do anything mentioned in paragraph (a)."
It is a matter of admission that the first respondent was approached by an organisation named the Scottish Campaign against Hunting with Dogs ("SCAHD") and invited to "sponsor" a bill such as that which he has submitted, that he was offered all necessary legal and administrative assistance required for that purpose, including advice on drafting, that he accepted and continues to accept such assistance, and that he agreed to promote and introduce such a bill, which he has done and intends to continue to do. A question obviously arises as to whether the advice and assistance which he has accepted and intends to continue to accept constitutes "remuneration" within the meaning of that word as it is used in Article 6, and as it is to be interpreted as including, by virtue of the interpretation provisions contained in Article 2 of the Order. We are, however, spared the necessity of expressing any view on that question since senior counsel for the first respondent conceded in the hearing before us that there was a prima facie or at least arguable case that he had acted and proposed to continue to act in breach of Article 6. Counsel for the second respondents invited us to express such a view, but I consider that it is not appropriate that we should give any indication whatever as to our opinion on a matter which is not in issue in these proceedings, which was not the subject of argument by senior counsel for the first respondent, and which may arise for later consideration by the court. The grounds on which counsel opposed the petitioners' motion for interim interdict were primarily that the court had no jurisdiction to entertain it, that there was no actionable wrong against the petitioners on which they could found, and that they had neither title nor interest to sue.
In respect of the first two of these submissions the Lord Ordinary found in favour of the respondents. He held firstly that the jurisdiction of the Court of Session in relation to the issues raised was excluded by virtue of provisions contained in section 40 of the Act, and particularly that the court had no jurisdiction to interfere with the operations of the Standards Committee who had been established so that the Parliament itself should deal with the alleged breach. Secondly, he held that, assuming that there was an actionable wrong, the wrong was one which he described as having been committed "against the Rules of the Parliament and its Committee" and "against the officials or indeed the Parliament itself". Accordingly he held that individuals such as the petitioners, however their interests might be affected, had no "right to tell, by way of legal action, a Committee of this Parliament that its own view of its own rules was inappropriate or even wrong".
On the basis of these views the Lord Ordinary sustained what are referred to in his interlocutor dated 26 November 1999 as the "respondents' preliminary pleas" and he dismissed the petition as incompetent and irrelevant. The first respondents' preliminary pleas were pleas that the petition was incompetent by virtue of section 40 of the Act and at common law; that it should be dismissed since there were no relevant averments of an apprehended civil wrong; and that it should be dismissed because the petitioners had neither title nor interest to sue. It appears from the Lord Ordinary's opinion, although not from his interlocutor, that he did not uphold the plea relating to the petitioners' title and interest. However, in upholding the pleas of competency and relevancy and in dismissing the action the Lord Ordinary in my opinion went beyond the scope of the hearing before him, which was an application by the petitioners for interim interdict. The only matters which arose for his decision were whether the petitioners had a prima facie case, and if so where lay the balance of convenience. In determining whether or not there is a prima facie case it may of course be necessary to consider questions of competency, relevancy and title on the basis not only of averments but also any statements made ex parte. It may be desirable in some cases, although certainly not in all, to arrive at a conclusion on such questions. In so far as a determination of these matters can be reached in the present case at this stage of the proceedings, there is in my view no reason to postpone it, since we heard full submissions on them and they raise questions of public importance. However any such determination is relevant only to the disposal of the petitioners' motion, and in the absence of agreement the respondents' preliminary pleas should be dealt with later in accordance with ordinary procedures for their disposal.
The respondents' submission that the jurisdiction of the court is excluded by virtue of the provisions contained in section 40 of the Act can in my view be shortly dealt with. Section 40(3) and (4) of the Act provides as follows:
"(3) In any proceedings against the Parliament the Court shall not make an order for suspension, interdict, reduction or specific performance or any like order but may instead made a declarator.
(4) In any proceedings against -
(a) any member of the Parliament...the Court shall not make an order for
suspension, interdict, reduction or specific performance or other like order if the effect of so doing would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament."
It is clear from these subsections that the general jurisdiction of the court in relation to proceedings both against the Parliament and against members of the Parliament is not only unaffected but is expressly recognised. What the court is firstly prohibited from doing in exercising that jurisdiction is from making an order which interdicts etc. the Parliament, although a declaratory decree remains competent. The court is further prohibited from making an order against any member of Parliament if the order would have the effect that it "would give any relief against the Parliament which could not have been given in proceedings against the Parliament". An order for interdict granted in favour of the petitioners would not interdict the Parliament. It would undoubtedly have an effect on Parliamentary business, but that is not what subsection (4) prohibits, since the effect would not be such as to give any relief interim or otherwise against the Parliament. The purpose of the subsection is simply to secure that the prohibition contained in the preceding subsection is not avoided by the expedient of proceeding against a member. The interdict which the petitioners seek does not proceed on the basis that the Parliament has committed any wrong or that any wrong by the Parliament is apprehended. There is no question therefore of the petitioners obtaining any relief against it if an interdict is pronounced, and the court's jurisdiction in these proceedings is therefore unaffected by the section.
In dealing with section 40 of the Act the Lord Ordinary makes observations to the effect that the Parliament must be allowed to regulate its own affairs, including the determination whether or not a member is competent to present a Bill. He states that the court "is not in the position of interfering" in these affairs. These views are reiterated when he expresses the view mentioned above that "the wrong, if it was committed, was committed against the rules of the Parliament and the Standards Committee". Such observations appear partly to proceed upon the basis that the first respondent owes no duty to the petitioners to comply with the Order, since the duties imposed on him by the Order are owed only to the Parliament. I deal with that question later; but particularly so far as relating to the Standards Committee and the "rules" of the Parliament, they also appear to be based on the view that the statutory framework which was provided for the Parliament by the Westminster legislature envisages that any matter relating to the conduct of a member acting in that capacity should be exclusively dealt with by the Parliament and not by the court. This in any event was a submission which I understood to have been made to us on behalf of the first respondent.
In my opinion this submission proceeds on a misunderstanding of the relevant statutory provisions, and on a confusion between those which are contained in the Order and those which make general provision for the supervision by Parliament of the conduct of its members. It is certainly true that the latter provisions entitle the Parliament to consider whether there has been a breach of the Order, and to take some action in respect of such a breach. However the existence of these provisions does not in my view have the effect of excluding or restricting the jurisdiction of the court in the matter. As the Lord Ordinary himself recognises,
"if a question arises as to whether or not the jurisdiction of the Court has been ousted by the legislature it must, save in very exceptional circumstances, be expressly stated and not rest on implication".
There is no express exclusion of the court's jurisdiction to afford redress to a person who has been injured or who reasonably apprehends injury as a result of a wrong committed by a member of the Parliament acting in that capacity. On the contrary, the court's jurisdiction to entertain an action against members is expressly recognised in section 40 of the Act, as I have mentioned. Moreover, a scrutiny of the relevant statutory provisions reveals that the Parliament's entitlement to deal with questions relating to members' conduct is related only to the regulation of their own business, and is not designed to impinge on the court's general jurisdiction.
The statutory provisions which govern the Parliament's entitlement to consider the conduct of its members were contained not in the Order, but in a prior Order, namely The Scotland Act 1998 (Transitory and Transitional Provisions)(Standing Orders and Parliamentary Publications) Order 1999, S.I. No. 1095. That Order contained the Standing Orders of the Parliament, expressed as a number of Rules set out in a Schedule. These rules have now been superseded by rules made by the Parliament itself which are in no material respect different from those contained in the Schedule to which we were referred and to which I now refer.
Standing Orders define in Rule 6.5 of the Schedule what is the remit of the Standards Committee on whose function the Lord Ordinary lays great emphasis. The remit is as follows:
"1. The remit of the Standards Committee is to consider and report on -
(a) whether a member's conduct is in accordance with these Rules and any
Code of Conduct for members, matters relating to members' interests, and any other matters relating to the conduct of members in carrying out their Parliamentary duties; and
(b) the adoption, amendment and application of any Code of Conduct for
members.
2. Where the Committee considers it appropriate, it may by motion recommend that a member's rights and privileges be withdrawn to such extent and for such period as are specified in the motion."
The Code of Conduct referred to in this Rule is one for which provision is made in Rule 1.6 and is to be laid down by the Parliament on a motion of the Committee. The power of the Committee to recommend that a member's rights and privileges be withdrawn is given practical effect by provision in Rule 1.7 that the Parliament may do so, on a motion of the Committee.
These Rules, including the provisions relating to consideration by the Standards Committee of members' interests, are clearly designed to enable the Parliament to operate efficiently and to regulate and enforce standards of conduct thought to be appropriate for its members in taking part in its proceedings. In a sense they are of public concern, since the public are obviously concerned with the proper regulation of Parliamentary business, but they are not designed for the benefit of the public beyond that general concern, and do not afford to members of the public any right to invoke the jurisdiction of the court in respect of any conduct by a member, including any conduct relating to his interests, in respect of which the Parliament may take action by withdrawing his rights and privileges.
The provisions of the Order are, however in a different position. As your Lordship has pointed out provision imposing duties on members regarding their interests must be made in the form of legislation, whereas Standing Orders can be adopted or amended without that requirement. Although the Lord Ordinary repeatedly refers to the provisions of the Order as "rules" as if they were supplementary to the provisions of Standing Orders, they are not so expressed. Further, the only sanction which Standing Orders allow Parliament to impose against a member in respect of his conduct is the withdrawal of his rights and privileges. Such a sanction is clearly inappropriate as a substitute for the exercise of the court's jurisdiction in cases where members have contravened or intend to contravene any legislative provision relating to their conduct. I agree therefore with your Lordship that the court's jurisdiction in a case involving the conduct of members is unaffected by the provisions contained in Standing Orders, and in particular is not affected by provisions relating to consideration by the Standards Committee of matters relating to members' interests, nor by those which allow the Parliament to take action against a member in the event of contravention, if that is deemed appropriate.
However, the Lord Ordinary's view that the wrong, if committed, was committed against the Parliament, does not appear to be based only on the proposition that any conduct which is subject to consideration by the Standards Committee and by Parliament is excluded from consideration by the court. It also appears to be based on the view that the duties imposed on members by the Order are duties which are owed exclusively to the Parliament, and not to the petitioners. No wrong can have been committed against the petitioners unless these provisions were conceived or at least partly conceived in their favour. Their title to sue depends not only on the interest which they claim in the compliance by the second respondent with the duties imposed on him by the Order, but also on their showing that these duties are owed to them as members of the public and not merely to the Parliament. The combination of interest and title as a member of the public as entitling a person to sue someone who is charged with a public duty is recognised by Lord Ross in Wilson v. I.B.A. 1979 S.L.T. 279, 282 in which he states that he "could see no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public...provided always that the individual can quality an interest." This view was not challenged on behalf of the first respondent, and I adopt it as a correct indication of the test which we should apply in the present case.
So far as interest is concerned, I adopt what was said by Lord Fraser in Inland Revenue Comrs. v. National Federation of Self Employed [1982] AC 617, 646, that the petitioners must establish "a reasonable concern" that the Article is complied with by the first respondent. In my opinion the petitioners have at least averred a prima facie and arguable case of such concern, although a final determination of the extent of their interest can only be made after the hearing of evidence. According to their averments their livelihoods would be severely affected if the Bill were to become law. A letter written by the first respondent indicates that the Bill is supported by a majority of members of the Parliament, and on the information put before us it appears likely that it will be passed, if it is introduced. Once passed, the validity of the Bill is not subject to challenge on the ground of any invalidity of proceedings leading to its enactment (section 28(5) of the 1998 Act). On the basis of these considerations I consider that the petitioners have advanced at least a prima facie case of interest to stop the introduction by the first respondent and the future progress of what they allege to be a tainted Bill if it be assumed that his part in these procedures would be in contravention of the Article.
It remains to be considered whether the provisions of Article 6 impose on the first respondent a duty owed to the public, or, as was submitted to us, a duty owed only to the Parliament. The first respondent undoubtedly owes a duty to the Parliament in relation to his conduct generally, including the conduct specified in Article 6, by virtue of his position as a member and also in accordance with the provisions to which I have referred which are contained in Standing Orders and which entitle the Parliament to consider his conduct and to take action against him if it is thought appropriate by withdrawing his rights and privileges. However the existence of this duty does not affect the proposition advanced on behalf of the petitioners that the duties imposed on the first respondent are owed to the public because the Order was conceived, or at least partly conceived, for the benefit of the public. In referring to the "benefit" or "interest" of the public I mean of course the particular benefit or interest of securing what the duties imposed on the second respondent are designed to secure, that is to say that any legislation by the Parliament is not influenced by the personal interests of its members. I am not referring to the general benefit to the public secured by the proper regulation of Parliamentary business for which provision is made in Standing Orders.
In considering for whose benefit a statutory provision has been enacted, it is necessary to consider the "scope and purpose" of the legislation (per Lord Kinnear in Black v Fife Coal Company Limited 1912 SC (HL) 33, 45. However there is an important distinction between the present case and those to which we were referred as assisting consideration of the matter. These cases were concerned with the question whether legislation had been enacted in the interest of individuals or sectional interests, such as patent agents (Institute of Patent Agents v Lockwood 21 R. (H.L.) 61), mineworkers (Black v Fife Coal Company Limited cit. supra); bookmakers (Cutler v Wandsworth Stadium Limited [1949] A.C. 398); and cab-drivers (Reid v Mini-cabs 1966 S.C. 137). In Cutler, for example, Lord Simonds (at p. 407) held that the statutory obligation in question had been imposed "for the public benefit" and that the breach of it was not a private wrong on which a bookmaker affected by its breach could sue notwithstanding his interest. In the present case the boot is on the other foot: it is the respondents who are asserting that the Order was passed exclusively for the proper regulation of Parliament's business in regulating its own affairs, and the difficulties which they face in doing so are the same as those faced by those who were seeking to avail themselves of the statutory provisions imposing duties in the cases referred to. By contrast, the petitioners in the present case are entitled to rely on the fact that, as in the case of Culter, if there is no contrary indication in the legislation, the provisions imposing duties on persons, which are contained in a statutory instrument such as the Order under powers contained in a public Act of the Westminster Parliament can readily be held to have been made for the benefit of those members of the public who would be affected if the duties were not complied with.
In the present case the Order, as its title indicates, deals only with a single matter, i.e. members' interests. Accordingly the question which arises is whether the Order as a whole, rather than any of its individual provisions, was conceived in the public interest. In my opinion a consideration of the scope of the Order, its terms, and the circumstances in which it was made clearly indicate that all of the provisions imposing duties on members, including those contained in Article 6, were at least partly enacted to satisfy this public interest; indeed it appears to me that any benefit obtained from them by Parliament in regulating its own affairs is the incidental one that it defines part of the conduct which it is entitled to consider. As I have mentioned, regulation by Parliament of the conduct of its members, including regulation relating to members' interests, is provided for not in the Order but in the rules contained in Standing Orders. The Order does not extend in any way the ambit of consideration provided by Standing Orders for the regulation by Parliament of its affairs, although no doubt it must be taken into account by the Parliament in their consideration of members' conduct. It is clearly not intended to be merely a supplement of the Rules providing for that consideration. What the Order does is to make it clear to members how they must act in relation to their personal interests; it does this be establishing a Register of Interests; by requiring declaration of these interests; and by prohibiting advocacy by members in favour of persons from whom they might have received favours. Since the public will be affected by any legislation passed by the Parliament it seems to me almost indisputable that the public has a direct interest to secure that any legislation is not affected by inappropriate conduct arising from the personal interests of members, and that the Order has been made primarily in order to satisfy that public interest. It is a matter of common knowledge that there has been public concern expressed in relation to the interests of members of the Westminster Parliament, and that independent bodies have been set up and have reported on that matter. The Order simply repeats what appears to have been provided for the Westminster Parliament. It seems to me clear that the provisions imposing duties on members are not designed merely to regulate what is the Parliament's own business but that they deal with matters which are of considerable and direct concern to the public. I agree with all that your Lordship in the chair has said in this connection.
The terms in which the Order is expressed confirms these views. In relation to the Register it is provided in Article 3(7) that a copy "shall be available for inspection by any person". In relation to various requirements dealing with registration, declaration of interest and advocacy it is provided in Article 9 that "any person" may make a complaint to the presiding officer. These provisions alone clearly recognise the existence of a public interest in the observance by members of the duties imposed on them. However, even more significantly, Article 8 makes it an offence by a member if he contravenes certain of the provisions, including those relating to advocacy. As was stated in relation to a statutory obligation contained in the Betting and Lotteries Act 1934 by Lord Simonds in Cutler v Wandsworth Stadium Limited cit. supra) at p. 407, "The sanction of criminal proceedings emphasises that this statutory obligation ... is imposed for the public benefit." I respectfully agree with and adopt that approach in relation to the prohibitions contained in Article 6 which are subject to the sanction contained in Article 8. The existence of this provision is totally inconsistent with the view that the prohibitions are conceived only for the benefit of Parliament in regulating its own affairs.
For these reasons I hold that the duties imposed on the second respondent by the Bill are duties which are owed to the public, including the petitioners and not, as was submitted, exclusively only to the Parliament. If this be accepted, and since the activities of members are not accorded any special immunity, I would have difficulty in understanding the concept that no "civil right" has been conferred on the petitioners which allows them to pursue their interest. The existence of a duty owed to a person necessarily involves a corresponding right of that person to assert it: if he has no such right there can be no duty owed to him. The enforcement of the right by the courts may of course be limited by provisions excluding or restricting the court's jurisdiction, such as those which are provided in section 40 of the Act, but I can find nothing in the Order or in the Act which even implies, let alone expresses, any such restriction in the present case. In particular, the fact that provision is made for the Parliament to take action against a member who has been in breach of his duties and for complaint to the Presiding Officer merely recognises and reflects the provisions in Standing Orders which allow Parliament to regulate its own business, and these provisions are necessarily "retrospective" for that reason. It was not and could not be contended that the criminal sanction imposed in Article 8, which is also necessarily retrospective, impinges on the court's civil jurisdiction. If there is no restriction of the court's jurisdiction in relation to the duties imposed on the second respondent, I am unable to see any reason why the petitioners should not be entitled to seek from the court any available method of protecting their interests by assertion of those rights which are necessarily involved as a counterpart of the duties owed to them.
I therefore hold that the petitioners have averred a prima facie case in all respects necessary to allow them to obtain the Order which they seek. The remaining question is whether the balance of convenience favours the grant of interim interdict pending the outcome of that case. If the petitioners are ultimately found entitled to the interdict which they seek but are not granted interim interdict until their case has been determined, it seems that (in the absence of any undertaking by the first respondent) the Bill will be introduced, will be subject to further procedures and debate and perhaps even passed, although ex hypothesi these proceedings would take place at the instance of the first respondent acting in contravention of Article 6. If on the other hand the petitioners are ultimately held not to be entitled to interdict the only damaging effect to the respondents and to the Parliament resulting from an interim order is that the progress of the proposed legislation will be delayed. It was not suggested that there was any urgent need to pass a Bill prohibiting an activity which has been taking place for very many years. The balance of convenience clearly favours the granting of interim interdict in the absence of any undertaking by the first respondent. However his counsel requested that if the court were otherwise inclined to granted interim interdict, she would wish the case to be put out By Order to afford the first respondent the opportunity of giving an undertaking. I would grant that request.
For these reasons I would grant the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 26 November 1999 and order that the case be put out before us By Order for further procedure.