A legal attempt to establish whether Holyrood has the power to hold a second independence referendum without Westminster authorization has been dismissed as “hypothetical, academic and premature”.
Independence activist Martin Keatings argued voters should know the correct legal position before voting in the Scottish Parliament elections in May and called for support for his view that PSM already have power to call such a vote.
In a 72-page opinion, Lady Carmichael said Mr Keatings did not have standing to bring the case to the Court of Session, but did not rule out whether Holyrood has the power to unilaterally hold a referendum going to court at a later stage.
The dismissal of the case will be a blow to independence activists, but was widely anticipated, including by Mr Keatings himself, who said he still expects the case to end. before the Inner House Court of Appeal.
A road map towards a referendum
Lady Carmichael’s ruling suggests that even if the case is inconclusive in the Home Chamber or Supreme Court, judges can still be asked to rule on the legality of any future referendum bills passed by the Scottish Parliament against Westminster’s will.
The 1998 Scottish law that paved the way for decentralization stipulates that the Union is a matter for London, but some academics have argued that PSMs could hold a non-binding advisory ballot on independence.
The SNP is expected to ask Westminster to transfer the necessary powers if it obtains a majority expected in May, but Prime Minister Boris Johnson has repeatedly rejected calls for a second ballot.
SNP bosses released an 11-point roadmap for a new vote last month that explains how MSPs would pass their own referendum bill and dare the UK government to challenge it in court if the demands continue to be denied .
Lady Carmichael’s judgment was expected to be worse than it actually was. It’s very attractive and the Lord Advocate has taken a few hits as well. His opinion will be published here soon: https://t.co/lghVKdCbCG pic.twitter.com/9J6TjW4r1O
– Martin J Keatings # VoteAFI2 (@MartinJKeatings) February 5, 2021
Lady Carmichael’s decision
In her ruling on Friday, Lady Carmichael said the lack of concrete referendum legislation had prevented the court from ruling, but added: “I would have reached the same conclusion even if a bill was available for consideration.”
She continued: “It is, however, important that issues that can truly be the subject of political debate and campaigning in the democratic process are allowed to unfold and be resolved in the political process, and that the courts intervene only when they have to do so to fulfill their function as guardians of the rule of law.
“The courts will clearly intervene to rule on allegations of illegality.
“When, however, there is no allegation of illegality and the tribunal is called upon to rule on the state of the law in an area which is currently the subject of political debate and controversy, it will be important to ensure that the question The question of whether an answer is necessary to protect the rule of law is dealt with rigorously. “
Opinion of Lady Carmichael in # PeoplesAS30 #Keatings case is a long read, but those who sing about loss in the first instance would do well to remember that both #Wightman & #Cherry the cases were lost at the 1st obstacle but were won in appeal https://t.co/Al0kEnWbtk
– Joanna Cherry QC (@joannaccherry) February 5, 2021
“ On the way to the inner house, we are going ”
In response to Lady Carmichael’s decision, Mr Keatings said the decision was “highly appealable” and did not represent a “silver rush to the heart”.
“While she may have dismissed the case on ‘hypothetical, academic, premature’ basis, this is clearly done on a neutral basis, and in fact in keeping with other cases of this nature,” said M . Keatings.
“As I have said many times, it is very unusual in this type of litigation to get an opinion on the outside and it almost always ends up on the inside.”
Mr Keatings also criticized the timing of the release of the SNP’s 11-point plan, which he said had been “conveniently released to the public after the hearings” and left Lady Carmichael without “all the information she needed to rule ”.
“What we need now is a referral to a higher authority and it comes in the form of the Inner House of the Court of Session, and as I said before, it was the next expected step – we’re in better shape than we thought we would be, ”he says. “So I have already asked for this process to begin and it’s off to the Inner House.”