THE People’s Action on Section 30 is an “important constitutional case” dealing with the safeguarding of “the principle of democracy”, the Court of Session has heard.
Aidan O’Neill, QC, told the court yesterday – the 701st anniversary of the Declaration of Arbroath – that he made no apology for starting with a document signed in 1320 because they were dealing with the “specific Scottish constitutional tradition, which … has emphasised the principle of democracy and the principle of the sovereignty of the people”.
Appeal judges are hearing the case brought by independence campaigner Martin Keatings on behalf of the Forward As One group, in which he is asking the court to declare the Scottish Parliament already has the power to legislate for indyref2 without “consent” from Westminster.
Lady Carmichael dismissed the argument after a two-day hearing in January, ruling it was “plainly raised prematurely” and that the question of another referendum was “also hypothetical and may never come to pass”.
O’Neill, representing Keatings – said the judges should rule on the issue before the Holyrood election so that people do not have to vote “in ignorance”.
He said the Scottish Government had now published a draft bill for a second referendum and Constitution Secretary Michael Russell has said it will be introduced if the SNP gets a majority at next month’s Scottish Parliament election.
O’Neill said the court should make its decision before the ballot on May 6 so voters can make an informed choice.
He said: “The Cabinet Secretary says the bill will be introduced if we get a majority, not if we find out it’s within legislative competence. He says it’s in legislative competence, he must be saying that. So what that means is that there is a real issue for this court to determine – is he right or is he wrong on that? Is the Scottish Government right or wrong in its claims?
“Because the voters need to know, because the voters have to determine whether to cast their votes on the basis of that claim being accurate or not.
“It is a live matter, it is an issue which has to be determined now because it will be too late for the voters if they have to cast their votes in ignorance of matters because the Scottish and UK governments have decided it’s politically expedient for the voters to be kept in ignorance. That is not how democracy works.
“It’s necessary that the decision of this court be made before this election precisely to allow democracy properly to work by informed voters.”
Lord President of the Court of Session, Lord Carloway, asked: “You expect the courts to make a decision on this matter in four weeks?”
O’Neill replied: “It is a matter for the court but yes, I’m suggesting that that would be the court exercising its constitutional jurisdiction.”
Carloway said the court had other cases on its rolls and it should not be assumed it would be capable of doing as suggested.
O’Neill told the virtual hearing it was within the powers of the Scottish Parliament to legislate for an independence referendum and said that they were seeking assurances on that through the
legal action. He said: “The question itself I say is absolutely straightforward and it’s clear that in any proper looking at the terms of the Scotland Act as it now stands, it is clear that that issue of whether or not an independence referendum can be legislated for by the Scottish Parliament is decidedly yes in favour of that proposition and that is why in this action we seek declarators to that effect.”
Andrew Webster QC, for the Advocate General of Scotland, said the case can be narrowed down to the idea the pursuer (Keatings) needs the court’s advice to be able to decide how to vote in next month’s election and that the court should not “effectively give voting advice”.
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