Decision made on appeal hearing for legal action over indyref2 without consent

Douglas Barrie, PA Scotland
·3-min read

A decision has been made on an appeal hearing over court action on whether Scotland can hold a second independence referendum without Westminster’s consent.

Lord Malcolm has granted an urgent disposal, with a hearing set for April 6 – one month before the Holyrood elections.

The appeal was brought forward by Martin Keatings, who initially brought the case before the Court of Session on behalf of the Forward As One group, asking the court to declare the Scottish Parliament has the power to legislate for another vote.

But after a two-day hearing in January, Lady Carmichael dismissed the case – ruling it was “plainly raised prematurely”, with the question of another referendum “also hypothetical, and may never come to pass”.

Aidan O’Neill QC, for Mr Keatings, reiterated the importance of an urgent disposal at a further hearing on Friday morning, which would allow an appeal to be heard in April.

Lord Malcolm agreed to grant the urgent disposal, with a hearing fixed for April 6.

He referred to a statement made by Scottish Constitution Secretary Mike Russell on the evening submissions were concluded before Lady Carmichael.

Mr Russell used the statement to declare there would be a draft Bill published regarding a second independence referendum and the intention of the SNP, if re-elected in May, to introduce such legislation before the Scottish Parliament.

Mr O’Neill said on Friday it is “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”.

Mike Russell
Constitution Secretary Mike Russell has declared the SNP intends to publish a draft Bill on a second vote (Jane Barlow/PA)

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 appears the proposed early disposal would be justified by Mr O’Neill either ahead of the May 6 vote or the proposed publication of a draft Bill.

But 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?”

Another issue raised was a protective expenses order, after Mr O’Neill told the court last month the 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 he and James Mure, for the Lord Advocate, suggested such an order be refused.

A timetable for the appeal hearing is expected to 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.