Court action over indyref2 without consent dismissed as ‘hypothetical’

Douglas Barrie, PA Scotland

A case brought before a Scottish court on whether the country can hold a second independence referendum without Westminster’s consent has been dismissed as “hypothetical, academic and premature”.

Martin Keatings brought the case before the Court of Session on behalf of the Forward As One group, asking it to declare the Scottish Parliament has the power to legislate for another vote.

During a two-day hearing last month, Aidan O’Neill QC, acting for Mr Keatings, told the court that voters in May’s Holyrood election need to know if such action is possible.

But questions were raised by David Johnston QC, on behalf of the Advocate General, on the legal standing of Mr Keatings.

Lady Carmichael has now dismissed the case, ruling it was “plainly raised prematurely”, with the question of another referendum “also hypothetical, and may never come to pass”.

In her decision published on Friday, she said: “The defenders’ submissions on these matters all express in slightly different ways the underlying proposition that it is either not necessary, or not possible, for the court to provide this pursuer with the remedy that he is seeking.

“The action is for these reasons, hypothetical, academic and premature, and the pursuer lacks standing to bring it.

“For the reasons given… I would have reached the same conclusion even if a draft Bill were available for consideration.

“I express no separate conclusion in relation to the proposition that the declarators sought are too vague. It is unnecessary to do so in order to dispose of the action.

“Having reached the view that I have in relation to standing, prematurity and the hypothetical nature of the proceedings, I do not require to determine whether to grant the declarators sought would have been incompatible with the separation of powers.

“It is, however, important that matters which may properly be the subject of political debate and campaigning in the democratic process are permitted to unfold and be worked out in the political process, and that the courts intervene only when they need to do so to fulfil their function as guardians of the rule of law.

“The courts will clearly intervene to determine allegations of unlawfulness.

“Where, however, there is no allegation of unlawfulness, and the court is asked for a determination as to the state of the law in an area which is the subject of current political debate and controversy, it will be important to ensure that the question of whether an answer is required in order to protect the rule of law is addressed with rigour.”

The judge said it is “unnecessary and would be inappropriate for me to express an opinion on the question of law” given the case was based on an “assumption that a referendum is to be conducted, or has actually already been conducted, under an Act of the Scottish Parliament”.

In addition, no view was taken on “the intentions of the Scottish Government” in regards to any draft Bill.

She said both “the first defender and the pursuer to some extent asked me to speculate… that would not be determinative of whether there was an issue of law on which the pursuer was entitled to a ruling from the court”.

On Mr Keatings’s standing, the judge said it is “relevant to note… the pursuer is an enfranchised voter in a system of representative democracy”.

While she said “he and every other voter has the right to vote for representatives in the Scottish Parliament”, she added “it is correct to say that Parliament derives its authority, strength and legitimacy from the electorate”.

Lady Carmichael concluded by highlighting that elected members are the ones “who then go on to make judgments, in their capacity as legislators”.

A legal opinion for Forward As One was first published by Mr O’Neill in December 2019, on the constitutionality of the issue after Prime Minister Boris Johnson refused to grant a section 30 order under the Act to pass laws normally reserved to Westminster.

One had been granted by the UK Government ahead of the 2014 independence referendum, in which Scotland voted to remain part of the UK by 55.3% to 44.7%.

Fundraising by Forward As One began in January last year for legal fees with the Crowd Justice website – https://www.crowdjustice.com/case/pas30/ – having raised more than £211,000 from around 7,500 pledges.

Mr Keatings is standing as an independent candidate for Mid-Scotland and Fife in the May 6 vote.

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