Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 29, 2022

Official Report 1200KB pdf

Point of Order

Good afternoon. The first item of business will be portfolio questions and the first portfolio is Covid-19 recovery and parliamentary business.

On a point of order, Presiding Officer. I make this point of order further to the one that Stephen Kerr made last night and in the light of the response from the Minister for Parliamentary Business in relation to the potential appearance by the Lord Advocate to answer questions on the referral of an independence referendum bill to the Supreme Court, which was announced yesterday by the First Minister.

As you will recall, the First Minister stated that she believes that the Lord Advocate would be willing to answer questions from MSPs. In response to Stephen Kerr’s point of order, the Minister for Parliamentary Business stated:

“Members know that the sub judice ... rule is recognised by rule 7.5 of standing orders by reference to the Contempt of Court Act 1981. That rule properly prohibits parliamentary debate of matters that are currently before the courts. Its purpose is to help to maintain the boundaries of the relationship between the legislature and the judiciary, and it should be respected on that basis.

The 1981 act is concerned with hearings and does not spell out when proceedings are active specifically for references like the one made today.”—[Official Report, 28 June 2022; c 213.]

With the greatest of respect to the minister, whom I see on the front bench, I would take issue with that. As he said, correctly, rule 7.5 of our standing orders contains the rule on sub judice. That states:

“A member may not in the proceedings of the Parliament refer to any matter in relation to which legal proceedings are active”—

that is correct. Secondly, it states:

“legal proceedings are active ... if they are active for the purposes of section 2 of the Contempt of Court Act 1981”.

Section 2 of the 1981 act refers to schedule 1 to the act, which refers to a number of different types of proceedings: criminal proceedings to civil proceedings, at both first instance and appeal.

Although there is no reference to a referral of a devolution issue, that is caught by paragraph 12 of schedule 1, which is a catch-all provision that catches the referral by the Lord Advocate. It says:

“Proceedings other than criminal proceedings and appellate proceedings are active from the time when arrangements for the hearing are made or, if no such arrangements are previously made, from the time the hearing begins, until the proceedings are disposed of or discontinued or withdrawn”.

In relation to the referral by the Lord Advocate that was announced yesterday, no such arrangements for a hearing have so far been made, thus the Lord Advocate’s referral cannot be said to be active proceedings either in law or for the purposes of our standing orders. Therefore, there is nothing to prevent the Lord Advocate from coming to this chamber to take questions from MSPs. That is in accordance with the wider position in Scots law.

For those reasons, I reiterate the calls for the Lord Advocate to appear tomorrow in the chamber, before the recess. This is urgent. Of course, if we wait until after the recess, the hearing might well have been arranged and the sub judice rule might well apply. This is the Parliament’s one and only opportunity. In the interests of transparency and openness, and given the proper role of this Parliament in scrutinising this Government, and given the very significant national issues that have been raised, I ask you to reconsider, on behalf of the Presiding Officer and the Parliamentary Bureau, especially in the light of what the First Minister said, which was that she thought that the Lord Advocate would be amenable.

I apologise for going on at some length, Presiding Officer, but, as a lawyer, you will know how important it is to outline the provisions.

I thank the member for his point of order. Standing orders provide that matters in relation to active legal proceedings can be referred to only to the extent that is permitted by the Presiding Officer.

In relation to the reference to the Supreme Court, my understanding is that the case is not currently active and that, therefore, the sub judice rule is not currently engaged. Once a date for a hearing is set, the expectation is that the rule will be engaged. At present, there is no indication of when a hearing will be set. At that time, it will, of course, be a matter for the Presiding Officer to apply the rule in the normal way.

Any statement by the Lord Advocate would, of course, be a matter for the Parliamentary Bureau in the first instance.