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  4. Court will not rule on legality of unapproved referendum

Court will not rule on legality of unapproved referendum

5th February 2021 | government-administration | Parliamentary

A Court of Session judge has declined to rule on whether the Scottish Parliament could lawfully legislate for an independence referendum without the consent of the Westminster Government.

Lady Carmichael today dismissed an action brought by SNP activist Martin Keatings against the Advocate General and Lord Advocate, seeking a ruling that the Parliament has power to pass such a law and that the Scottish Government's proposed legislation on the subject contains no provision that would be beyond the Parliament's legislative powers.

She ruled that the action was "hypothetical, academic and premature", and that Mr Keatings had no standing to bring it.

Mr Keatings had sought a ruling on the grounds that:

  1. legal certainty was needed to prevent the constitutional paralysis which would result from a retrospective determination that an already-held referendum was outwith legislative competence;
  2. without certainty as to the lawfulness of any referendum, there would be doubt as to whether sanctions for crimes contrary to the provisions of the Referendums (Scotland) Act 2020 might eventuate;
  3. MSPs had to know in advance of passing legislation for a referendum whether their actions would be within their powers;
  4. it was not properly open to the Scottish Government to campaign for re-election on the basis that, if re-elected to power, it would purport to act beyond the limits of the powers imposed on it by law;
  5. the pursuer required answers to inform his campaigning and the pressure he was thereby able to exert on politicians;
  6. he had a sufficient interest as a voter, and the issues were not hypothetical as regards his interests as a voter. He advances these propositions on the following bases.

Lady Carmichael said points 1 and 2 were "plainly raised prematurely. They are also hypothetical, and may never come to pass". It would only be an Act passed by the Parliament that would require scrutiny, and other remedies would be available at that time.

On point 3, it was "premature and pointless" for the court to rule in advance, because a proposed Act was open to change until it was passed. Advice on a draft would not necessarily be of help to MSPs.

Point 4 was related to points 5 and 6, as to which Lady Carmichael applied the Wightman case (2019) on exiting the European Union, as meaning that only MSPs who had to take part in an inevitable vote had sufficient interest to sue. There was no need for a determination in order to preserve the rule of law. "The ability to campaign politically or lobby for a desired result does not necessarily depend on information as to whether or not that result can be achieved without a change in the existing law", the judge said. "There is not the close relation between the right to campaign and the advice sought that there was between the vote in which the MPs in Wightman were to be engaged and the advice that they sought."

On point 6 she added that it was "those representatives constituting the Parliament, and not the individual voters, who are the decision-makers in relation to the introduction, promotion and passing of legislation. I do not accept as correct the pursuer’s characterisation of individual voters as the decision-makers in relation to the introduction, promotion or passing of particular pieces of legislation". Nor was exercising the right to vote directly comparable to the vote in which the MPs in Wightman were to participate.

She would have reached the same conclusion even if a draft bill were available for consideration.

Having reached that view, it was not necessary to decide whether the declarators sought would have been incompatible with the separation of powers. It was also unnecessary, and would be inappropriate, to express a view on the questioning the first declarator sought.

Click here to view the opinion.

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