Indyref2 court case dismissed as ‘premature and hypothetical'

Keatings said the dismissal by Lady Carmichael of his action to prove that Holyrood already has the power to hold a second independence referendum is not “a silver spike through the heart”.

The crowdfunded case will now go to an appeal court, the Inner House of the Court of Session, where it will be heard by bench of at least three judges.

Keatings said Carmichael’s ruling was expected and she had dismissed the People’s Action on Section 30 “on a neutral basis”. However, he said she had not mentioned the SNP’s 11-point road map to independence, which was revealed the day after the hearing and had rendered the UK and Scottish governments’ pleas “meaningless”.

He said: “This means that as a matter of course, she believed she had no choice but to dismiss because she didn’t have all of the necessary information to move it from one column (hypothetical, premature, academic) to the other (not hypothetical, not premature, not academic).

“This is purely a technical issue, which would not have been an issue if the Scottish ministers had been more forthcoming.

“The Advocate General and Lord Advocate have done everything they can to blur the lines in this case but the gaping holes in the constitution are there for everyone to see.”

Keatings added: “It was, to all intents and purposes, a neutral ruling because she did not have available to her all the information she required to rule, and from first glance the ruling is highly appealable, especially considering the release of the 11-point plan, conveniently delivered to the public after the hearings.

“What we need now is a referral to a higher authority and that comes in the form of the Inner House of the Court of Session. I’ve already instructed that process to commence.”

After the judgement, the Scottish Government’s Constitution Secretary Michael Russell stated: “People in Scotland have the right to decide their future. The Scottish Government will therefore publish before the end of this current Parliament a bill for a referendum to be held once the pandemic is over.

“The bill will set out clearly the terms of that referendum and if there is a majority in the next Scottish Parliament for a post-pandemic referendum there can be no justification whatsoever for any attempt to block the democratic will of the people of Scotland.”

Russell added: “This court action raised important legal and constitutional issues unconnected to the issue of independence. If it had been successful it would have opened the door for anyone to launch a legal challenge against any proposed new legislation – including a referendum bill – before the Scottish Parliament had even had a chance to consider it.”

In a comprehensive judgement, Lady Carmichael summed up the case made by both sides.

READ MORE: No outcome was always the most likely decision in indyref2 case

The UK Government argued that “the pursuer [Keatings] lacks standing, that the action is hypothetical and premature, that the action is incompetent, and that it would, for a variety of reasons, be wrong as a matter of constitutional law for the court to grant the declarator the pursuer seek.”

Keatings’s lawyers said “that he is a campaigner for Scottish independence. He pleads that as a campaigner, and as a voter in the forthcoming Scottish Parliamentary elections, he has a sufficient interest to give him standing to seek the orders that he does. He says he and other campaigners and voters need to know the legal position before the election, in order to determine how to campaign, and how to cast their votes.”

Lady Carmichael said that Keatings’s main arguments had been raised prematurely, were hypothetical and may never come to pass.

She wrote: “They proceed on the assumption that a referendum is to be conducted, or has actually already been conducted, under an act of the Scottish Parliament which may be ultra vires.

“First, each of these propositions depends on there being an act of the Scottish Parliament under which a referendum might proceed or have proceeded. It would be that act, as passed by the Scottish Parliament, that would require to be scrutinised as to its legislative competency.

“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. The bill in question might be referred to the Supreme Court by a law officer before Royal Assent.

“If it were not, the act could be subject to judicial review after Royal Assent. That could all be achieved before any referendum was conducted in reliance on the act in question.”

Dismissing the action Lady Carmichael wrote: “It will generally, as I have already indicated, be premature and pointless for the court to adjudicate as to the lawfulness of a proposed act of Parliament at any point before it is passed, because it is open to change by way of amendment at the hands of the Parliament itself until it has been passed.

“Advice in the abstract, or about a draft, or even a bill as presented, would not necessarily avail Members of the Scottish Parliament who wanted to know whether their vote would result in the passing of legislation that was ultra vires.”