A court has been told it cannot accept the legal standing of a man campaigning to determine whether Scotland can hold a second independence referendum without the UK Government’s consent.
Martin Keatings has taken a case to Scotland’s Court of Session, seeking a declarator of the court that the Scottish Parliament has the power to legislate for another referendum.
He is part of the Forward As One group in the case against the Advocate General and Scotland’s Lord Advocate, in a virtual hearing before Lady Carmichael.
But David Johnston, on behalf of the Advocate General, suggested to the court on Friday a pursuer has to be directly affected and Mr Keatings “does not have standing to bring these proceedings and the rule of law does not require that he should”.
When asked by Lady Carmichael if that was removing a fundamental right, Mr Johnston submitted they are “not in the position to have an enforceable right” for the court to determine the issue.
He maintained the pursuer is not a member of the Scottish Parliament, adding: “The question is academic and the pursuer is not affected by the answer.”
The QC also suggested it appears the Scottish Parliament has no intention to introduce a referendum Bill before the election on May 6, and while the Scottish Government can legislate to draft one, the “court cannot make assumptions” on the future Parliament or manifesto pledges.
Mr Johnston said there is “nothing anti-democratic” in denying Mr Keatings’s standing, saying society can “take the form of representative democracy”.
It comes after Aidan O’Neill QC told the court on Thursday his client Mr Keatings is representing public interest in the litigation, and expressed dismay at the defenders who “insultingly call him a mere busybody”.
Mr O’Neill added an answer on the issue “is absolutely required in order to inform votes of ordinary citizens in forthcoming Scottish elections”.
Aidan calling it as he sees it with Lord Advocate, namely that he's not some angel above all the politics, he's right in there amongst it. #PeoplesAS30
— Martin J Keatings #VoteAFI2 (@MartinJKeatings) January 22, 2021
James Mure QC represented the office of the Lord Advocate as a second defender in the case, which he attempted to make clear was not Lord Advocate James Wolffe himself – also stating he is not a member of the SNP and not in proceedings as a representative or defender.
He reminded the court the Scottish Government is “not party to the proceedings” having withdrawn from the case in August, adding the Scotland Act 1998 – which would grant a section 30 order regarding the staging of a referendum – leaves it to the Scottish Parliament to determine its own policy goals.
Meanwhile, Mr O’Neill said Mr Keatings is not a busybody or bystander, but “somebody acting in good faith and at some personal cost and risk to clarify a matter required to know for people to vote”.
He said the Lord Advocate is “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 Lady Carmichael that neither Mr Johnston nor Mr Mure addressed the point of the pursuer as a voter, before urging her in his final remarks to “step up to the plate” with her judgment.
A legal opinion for Forward As One was first published by Mr O’Neill in December 2019, on the constitutionality of the issue after Prime Minister Boris Johnson refused to grant a section 30 order under Act to pass laws normally reserved to Westminster.
One had been granted by the UK Government ahead of the 2014 independence referendum in which Scotland voted to remain part of the UK by 55.3% to 44.7%.
Fundraising by Forward As One began in January last year for legal fees with the Crowd Justice website – https://www.crowdjustice.com/case/pas30/ – having raised nearly £200,000 from around 7,000 pledges.
Mr Keatings is standing as an independent candidate for Mid-Scotland and Fife in the vote on May 6.
Lady Carmichael told the court on Thursday she expects to issue her ruling “within days rather than weeks”, adding on Friday she will “write very swiftly”.