(79)  The Scottish Parliament and the rule of law

“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. … 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 [Scotland] Act [1998] 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.” (per Lord President Rodger, in Whaley and Furness v Lord Watson of Invergowrie and the Corporate Body of the Scottish Parliament, 16 February 2000, 2000 GWD 8-272)

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