A CAMPAIGN to find out if Holyrood already has the power to hold a second independence referendum has asked for a rapid move to the next stage of its legal fight.
Martin Keatings, on behalf of the Forward as One group, lost the first round of his case at the Court of Session last month after Lady Carmichael said it was “hypothetical, academic and premature”.
He is now trying to have the case heard by the court’s inner house on appeal before May’s Holyrood election, arguing voters need a ruling before going to the polls.
In court today, Aidan O’Neill QC, for Mr Keatings, reiterated the importance of an urgent disposal so that an appeal could be heard in April.
He referred to a statement made by SNP Constitution Secretary Mike Russell on the evening submissions were concluded before Lady Carmichael.
Mr Russell said the Scotitsh Government intended to publish a draft Referendum Bill before the election and if the SNP was returned to power it would introduce it to parliament.
Mr O’Neill said it was “clearly not just an election issue but an issue of dispute between the UK and Scottish Government, being seen as central to the basis of which voters are being asked to cast their votes”.
Looks like Lord Malcolm is minded to grant our motion for urgent disposal (hearing before election). Fingers crossed.
— Martin J Keatings SNP 1 | AFI 2 (@MartinJKeatings) February 19, 2021
However Andrew Webster QC, for the Advocate General of Scotland, disagreed with Mr O’Neill’s notion of a need for “urgency” and said the question would still be irrelevant.
He told the hearing it appeared an early disposal would be justified by Mr O’Neill either ahead of the May 6 vote or the proposed publication of a draft Bill.
He said: “If the draft Bill is indeed relevant… then I beg the question where is the rationale to have this matter disposed of before that Bill is available?
“And if it’s not relevant, I ask the same question – where is the rationale to have the matter disposed of before the Bill is available if it is not relevant?”
READ MORE: Court rejects bid for Indyref2 ruling as ‘hypothetical, academic and premature’
In her 72-page opinon last month, Lady Carmichael said she would still have ruled against Mr Keatings even if a draft bill had been available, noting draft bills are often greatly amended as they go through parliament.
In a crowd-funded action, Mr Keatings had asked the court for a ruling on whether Holyrood has the power to hold an independence referendum unilaterally.
The 1998 Scotland Act which created devolution states that the Union between Scotland and England is a matter reserved to Westminster.
However some academics argue Holyrood could stillhold a non-binding vote on independence, albeit one which did not necessarily lead to ending the Union.
Mr Keatings had also sought a declarator on whether the SNP Government’s proposed referendum bill – which has yet to be published – would be ultra vires or not.
Lady Carmichael said Mr Keatings action was “hypothetical, academic, and premature, and the pursuer lacks standing to bring it”.
She said: “I would have reached the same conclusion even if a draft bill were available for consideration.”
She said that the lack of concrete referendum legislation left the court unable to rule it.
However she said the question of whether Holyrood could hold Indyref2 without Westminster consent could return to court at a later stage.
Mr Keatings said at the time that the first round had gione as expected, and he would appeal.
Another issue raised today was a protective expenses order.
Mr O’Neill told the court last month that members of Forward As One would seek expenses on the basis that the case was not pursued for Mr Keatings’s personal gain but to vindicate their “public rights as ordinary voters”.
On Friday, Mr O’Neill told Lord Malcolm it is “entirely clear the pursuer himself is not wealthy in any sense”, and without the order there would be a “real and substantial barrier to justice”.
Crowdfunding for the action on a Crowd Justice page currently sits at more than £214,000.
But Mr Webster quoted a figure of “£258,234 when last counted” which was “referred to in an unsigned affidavit”.
Both Mr Webster and James Mure, for the Lord Advocate, suggested such an order be refused.
Lord Malcolm said he could issue a ruling today and if an urgent disposal was granted, a timetable for the appeal hearing would be issued to both parties next week.
Mr Keatings is standing as an independent candidate for Mid-Scotland and Fife in the vote on May 6.
