THE crowdfunded Article 30 challenge will leave Scotland’s highest civil court without a win or lose result, according to a public law specialist.
Professor Aileen McHarg of Durham University says the Court of Session is unlikely to reach a yes or no conclusion in the case of Martin Keatings versus the Advocate General and Others.
Paid for by around 7000 individual donors, the landmark suit aims to prove that the Scottish Parliament does have the power, under the provisions of the Scotland Act 1998, to legislate for the holding of an independence referendum without first gaining Westminster consent.
More than £185,000 has been committed to the push by Yes campaigners Forward as One. Keatings, convenor of the group, has submitted more than 30 pages of legal argument to the Edinburgh court. A two-day hearing will take place this week.
Supporters hope the case will remove a major obstacle to the staging of another constitutional ballot – the requirement of a UK Government sign-off in the form of an Article 30 order.
But McHarg, a respected public law specialist who specialises in Scottish constitutional and administrative law, predicts the court is likely to “avoid deciding the question” – meaning Keatings’ donors and supporters may have to prepare to take the issue to the highest court in the UK.
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She told the Sunday National: “I think the court will try to avoid deciding the question. It’s most likely that they will decide that it is hypothetical and therefore isn’t something they are going to resolve.”
On the chances of success for Forward as One, she added: “I don’t think they’ll win, but I don’t think they’ll lose.
“It doesn’t mean this is the end of the road anyway. There is a chance that any decision will be appealed. This is a case that could have the potential to go all the way to the Supreme Court.”
While there were originally three defenders in the case, Scottish ministers have withdrawn, leaving Advocate General for Scotland, Lord Keith Stewart, QC and James Wolffe QC, the Lord Advocate. They claim the proceedings are hypothetical and incompetent, as well as being premature and vague.
McHarg said the case is both “significant” and “fascinating” but may not create an alternative route to a fresh ballot – even if the court finds in Keatings’ favour. She stated: “Having the referendum is one part of the process but it’s not the end of the process. Even if this case is successful, it doesn’t necessarily mean that it would be desirable to go ahead.
“The Scottish Government would probably prefer to proceed with a second referendum with the agreement of the UK Government.
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“Getting to independence does clearly require cooperation from the UK Government if it’s to be done in a lawful manner.
“But it does create options for getting out of that impasse we appear to be in at the moment where the UK Government is simply saying ‘no’.
“A Yes vote in a referendum which the UK Government then refused to cooperate with might create a degree of international pressure.
“It would look bad internationally if a court has said ‘yes, that referendum can go ahead’, it’s a properly regulated referendum with a fair question and proper control of spending as it was in 2014 and, if that precedes a Yes vote, for the UK Government to say ‘we are not going to recognise this’. That would be a difficult legal position.”
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