Crowdfunded indyref2 court bid may be a bad waste of good cash

At the time, this was a ground-breaking sum, collected from a combination of high-profile donors – Linda McCartney famously gave the campaign £1000 – and a mass of smaller contributors who wanted to give the environmentalists the legal means to defend themselves against the mighty resources of the burger multinational.

During the 1990s, Steel and Morris relied on personal cheques and postal orders to swell their defence fund. Today, the emergence of social media and crowdfunding platforms have made it easier than ever for people anywhere in the world to contribute money towards artists they admire, politicians they support – or campaigns they sympathise with in just a few clicks. The same goes for litigation.

There’s a bitter old line that justice in the UK is often like the Ritz Hotel – open to the rich and poor alike. This remains too true. Whatever the rights or wrongs of your case, it’s all too easy to be priced out of the market for legal services, and for potential litigants to be cowed by the devastating costs which can accrue over even a handful of days in the Court of Session. Access to the court is often described as a basic right at common law – but often as not, that right is theoretical and illusory rather than practical and effective.

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Crowdfunds have given popular causes and popular individuals unparalleled opportunities to mobilise their social networks collectively to find the resources to pay for cases which otherwise could not have been brought. At its best, crowdfunding can rebalance the scales of justice in favour of people and campaigns who would otherwise struggle to defend themselves or to vindicate their rights. This can only be a powerful force for good. But at its worst, crowdfunding is also vulnerable to hucksterism, opportunism and lack of transparency. It can result in thousands of pounds being poured into lost causes, simply because the money’s already been raised and enterprising lawyers are willing to give even the most doomed legal arguments a shot.

By my reckoning, crowdfunds have raised at least £2,300,000 for litigation in Scotland since 2015. The legal issues raised in these cases have been diverse. They have been used to challenge the lawfulness of Boris Johnson’s prorogation of Parliament and to contest the fairness of Scottish Government complaints mechanisms, to free Humphrey Errington’s impounded cheese from state custody, and to resist Spain’s attempts to extradite Clara Ponsati into theirs.

By the time you read this, the campaign group Forward as One will be the latest campaign group to hit their funding target. Organiser Martin Keatings sought £150,000 to begin proceedings in the Outer House of the Court of Session. This is a considerable amount of money, and by any fair reckoning, a personal achievement for the organisers. I am less convinced, however, their case will lead the Yes movement anywhere useful. As someone with an academic interest in devolution, I’m looking forward to the outcome. As a pro-independence person? I’m mostly hoping the case isn’t a strategic error.

Forward as One has dubbed the case the “People’s Action on Section 30” – but this is a bit of a misnomer. In its initial pitch for funds, the organisers’ plan seemed to be to find some legal way to compel the UK Government to grant a Section 30 order. The legal basis for doing so was vanishingly unclear, and the case looked like another example of sending good money after bad. But their legal focus shifted dramatically midstream, with the publication of a counsel’s opinion from Aidan O’Neill QC. This opinion refocused their efforts on a much better legal question.

Despite what you might have read, this case isn’t about international law and it isn’t about the Claim of Right. It isn’t about the legal status of popular sovereignty in Scotland and it isn’t about the Acts of Union – at least not in legal terms. Legally, it has a far tighter and more technical focus. Section 28 of the Scotland Act says Holyrood legislation which “relates to reserved matters” is not law. The Union of the Kingdoms of Scotland and England is one “aspect” of the constitution which is reserved. So would an indyref2 bill “relate to” the Union, and if not, why not? In reaching a decision on that question, the courts are instructed to consider the legislation’s “purpose and effect in all the circumstances”. Section 101 of the Scotland Act also tells them that devolved legislation should be “read as narrowly as is required for it to be within competence, if such a reading is possible”.

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Section 30 of the Scotland Act remains woefully misunderstood. It is often misrepresented as a mechanism for Westminster to give its “permission” for a referendum – but this is not so. Read the section for yourself, and you’ll find no mention of referendums, or independence, or permission. Section 30 simply gives the UK Government the power to add or subtract topics from the list of reserved matters in the Scotland Act. This took place in the run-up to 2014 to “put it beyond doubt” Holyrood had the power to organise the first referendum. This case is tackling those doubts, arguing that the Scottish Parliament already has the latent power to order a poll under the Scotland Act.

Taking all this together, O’Neill suggests there are “good arguments” in favour of the idea Holyrood already has the power to arrange a referendum on independence without changing the Scotland Act at all.

I agree. This isn’t a new point of legal analysis. For the past decade, scholars like professors Aileen McHarg, Christine Bell, Neil Walker and Tom Mullen have been making the same one. For Scottish constitutional watchers with longer memories, O’Neill’s involvement in this case is not without its ironies. O’Neill is a creative barrister, with a talent for lateral thinking and considerable experience in Scotland’s superior courts. He is also a long-standing and public critic about precisely the legal case he will make on behalf of Forward as One to the Court of Session.

Writing for The Guardian in November 2011, O’Neill argued that “just as the Scottish people are not sovereign, neither is the Scottish Parliament”, suggesting the Scotland Act represented an “insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland”. O’Neill is an advocate. Professionally, he speaks for others, and constructs defensible arguments with the legal resources available to him. His legal analysis may have changed since 2011, but the fact the Forward as One’s own advocate doesn’t find the case he’s making convincing should be a strong clue as to the chanciness of this litigation. The UK Government will bark O’Neill’s legal analysis right back at him.

While the courts may accept a referendum falls within Holyrood’s competence, it is just as likely they do what O’Neill predicted in 2011 and decide Holyrood has no such competence. Given that clear and present danger, it isn’t obvious why now’s the time to run it. Save as an expression of frustration, the tactical thinking behind the timing of this intervention is not obvious. It is sometimes assumed legal clarity will be politically useful. This isn’t necessarily the case. Alex Salmond was able to exploit legal uncertainty effectively in the run-up to the Edinburgh Agreement. A negative decision on Holyrood’s legislative competence at this stage in the electoral cycle can only restrict the Scottish Parliament’s scope to put political pressure on Westminster. I don’t understand why we should be doing the UK Government’s work for them. I don’t see why we should be working to spare them the political hit of trying to frustrate referendum legislation when the pro-independence majority in Holyrood actually passes it.

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There is a third outcome to this case – and perhaps the most likely one at this stage. Backers of this litigation will sometimes tell you “at least we’ll get clarity either way”. But I’m afraid even this is not the case. Considered unsentimentally, the most likely conclusion to this case is that the Court of Session will simply refuse to answer the question posed as abstract, hypothetical and premature. Courts don’t work like an Ask the Judge column in your local newspaper. Courts look for real legal decisions and disputes before handing down judgments.

In July, the campaign sought what’s called a “protected expenses order”. This is a directive from the court, capping the expenses due at the end of the litigation, and letting the costs fall where they may. They are a fairly new phenomenon in Scots law – and are very rarely granted. Knocking back Forward as One’s application, Lady Poole made several observations which strongly suggest the campaign will reverse out of the Court of Session with a substantial legal bill to pay and no answer to the legal question they’ve asked.

Dismissing comparisons of this litigation to the Cherry case, the judge observed that “the court does not exist to determine questions in the abstract, including hypothetical questions about the competence of possible forms of future legislation”. However you slice it, this is precisely what Forward as One are asking the Court of Session to do. There’s every likelihood the case is kicked out without shedding any more light on the limits of Holyrood’s powers. This might strike you is an unproductive way for independence campaigners to burn through £150,000 – but you can’t say we weren’t warned.