LORD Advocate James Wolffe has been accused of trying to turn litigation into a “game of snakes and ladders” by trying to halt a crowdfunded bid to prove the Scottish Parliament can hold indyref2 without “permission” from Westminster.
Aidan O’Neill QC, counsel for Forward as One convener Martin Keatings, who raised the case, made the accusation on the second day of the remote Court of Session hearing.
David Johnston QC, for the Advocate General, and James Mure QC, for Wolffe, argued that Keatings did not have the “standing” to bring such an action.
Johnston said yesterday that a pursuer had to be directly affected and Keatings “does not have standing to bring these proceedings and the rule of law does not require that he should”.
He said there was “nothing anti-democratic” in denying his standing, and said society can “take the form of representative democracy”.
The lawyer said the pursuer had to establish “some kind of sufficient interest” and that what he wanted to do “by way of campaigning, or encouraging people to cast votes in a particular way, is not what the law recognises as sufficient interest”.
“I don’t criticise him for bringing them, but it’s a separate question whether he has an enforceable right to which you can bring before the court to have it make a ruling on this issue,” he said.
Mure said that in this instance “acting in the public interest, the Lord Advocate makes legal submissions to ensure the proper interpretation and application of the law, as he sees it, bearing on the Scotland Act and the constitutional structures”.
However, O’Neill claimed that Keatings was representing the public interest, which “simply is not being served”.
READ MORE: Martin Keatings ready 'for the dawn' as Section 30 legal challenge goes to court
He then expressed his dismay at the defenders who “insultingly call him a mere busybody”.
O’Neill told judge Lady Carmichael: “I am reluctant to turn litigation into a game of snakes and ladders.
“It seems to be a game at which the present Lord Advocate excels and prides himself in, at least from, as I say, the position being taken in this present case.”
On the question of Keatings’s standing, O’Neill referred to the case of an entrepreneur who runs green energy companies in England, who had raised a procedure under Scots law to attempt to settle a legal dispute where none remedy exists.
In the face of the continued statements from Boris Johnson “that he would die in a ditch”, rather than sign the Brexit extension letter to the European Commission”, the entrepreneur raised the issue in the Court of Session.
O’Neill said the man had wanted the court to allow him to send the extension letter himself if it was “not going to be signed in accordance with the avowed statements from the Prime Minister”.
READ MORE: James Wolffe QC under fire for trying to halt Section 30 legal challenge
“That’s a very public law case … It was brought not by any parliamentarian, but as I see by an individual, an individual who has a history of campaigning on environmental issues, but an individual citizen.”
He said it had left “a Damoclean sword, hanging over the Prime Minister, “until such time as he did not in fact die in a ditch, but signed the required letter while lying in the ditch no doubt”.
“No issues of standing were raised, or if they were raised they were dropped quite rightly,” added O’Neill.
The lawyer said Keatings was “acting in good faith and at some personal cost and risk to clarify a matter required to know for people to vote”.
READ MORE: Section 30 court case will be inconclusive, public law expert says
The Lord Advocate, he said, was “not this apolitical guardian angel of the constitution floating above the messiness of down and dirty politics – he’s right in the Parliament … this is not an issue he can get away with squirming attempts to say promotion of Bills before Parliament is nothing to do with him”.
He also highlighted to the judge that neither Johnston nor Mure had addressed the point of the Keatings as a voter, before urging her in his final remarks to “step up to the plate” with her judgment.
Lady Carmichael told the court on Thursday she expected to issue her ruling “within days rather than weeks”, and said yesterday she will “write very swiftly”.
Keatings is standing as an independent candidate for Mid-Scotland and Fife in the Holyrood vote on May 6. His fundraiser for this case is here.
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