Scottish independence is ‘not inevitable’ says Douglas Ross
Martin Keatings brought the case before Scotland’s Court of Session on behalf of the Forward As One group, in a bid to prove the Scottish Parliament has the power to legislate for another vote. But after a two-day hearing last month, a senior judge 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 judgement, Lady Carmichael said it was “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 under an Act of the Scottish Parliament”.
She added in her 61-page judgement: “Answers provided by the court now, whether in the abstract, or on the basis of a draft bill, would not serve to avoid the difficulties apprehended by the pursuer.
“Second, there is no need for the court to try to provide an answer at the present time.
“Other remedies would be available at the time any legislation came to be passed.”
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However, Lady Carmichael said the courts would intervene in cases of alleged unlawfulness by Governments on any future independence referendum.
This comes after First Minister Nicola Sturgeon said she couldn’t rule out a legal challenge in the courts on a second independence vote if Boris Johnson refuses to grant a section 30 order for a referendum.
Lady Carmichael continued in her ruling: “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.”
Mr Keating was part of the Forward As One group being represented by Aidan O’Neill QC in the case against the Advocate General and Scottish ministers, in a virtual hearing before Lady Carmichael.
Mr O’Neill said during the two-day hearing last month there was “no argument that a potential referendum on potential independence can be said to relate to the reserved matter or breach section 287 of the Scotland Act”.
The court heard it described as a “perfectly coherent case” and that the “purpose of independence referendum is one of consulting the people of Scotland about the possibility of future constitutional change in the UK”, which Mr O’Neill said is fully in accordance with the principle of democratic accountability.
However, representing the Scottish Advocate General, David Johnston QC, said the case “ought not to be in this court in the first place” and it should be a matter for the UK Supreme Court.
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For this reason, Mr Johnston told the court there is no need for it to consider Mr Keatings’s interpretation of the Scotland Act.
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.
Such an order – under the Scotland Act 1998 to pass laws normally reserved to Westminster – was granted by the UK Government ahead of the 2014 independence referendum in which Scotland voted to remain part of the UK by 55.3 percent to 44.7 percent.
Fundraising by Forward as One began in January last year for legal fees, with the Crowd Justice page currently sitting at just under £200,000.
The website has around 6,800 pledges but Mr O’Neill told the court 10,000 people are backing the campaign.
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