A judge has been urged to rule on whether Holyrood can unilaterally hold an independence referendum so that voters do not have to trust what may turn out to be SNP “bluff and bluster”.
In a landmark case, the Court of Session has been asked to issue an declarator stating that the Scottish Parliament has the power to call a new vote on separation without the permission of UK ministers.
Experts are generally of the view that Westminster's permission would be required to hold a legal vote - with the constitution explicitly reserved under the Scotland Act - although the matter has not been tested in court.
The case has been brought by Martin Keatings, a pro-independence campaigner who raised around £230,000 in online donations, amid growing frustration from grassroots activists at Nicola Sturgeon’s failure to deliver a new referendum.
Aidan O’Neill, representing Mr Keatings, told the court that voters were currently being asked to trust in a “secret plan” to secure a new referendum and that a ruling would ensure they were not "kept in the dark".
The constitutional context of legal developments around Irish Independence is indeed relevant. Who’d have thought it? And the decisions in #Wightman & #Cherry turn out to be very important to the argument. Satisfying for all of us involved
— Joanna Cherry QC (@joannaccherry) January 21, 2021
Ms Sturgeon is also facing growing anger from some independence supporters over her refusal to explain how she will secure a new referendum if Boris Johnson sticks to his word and refuses to grant permission.
In a move that has further angered some activists, Scottish ministers have formally sided with the UK Government in opposing Mr Keatings’ case.
“He [Mr Keatings] has a right to legal certainty on this issue," Mr O'Neill said, at an online hearing on Thursday.
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"As an ordinary voter, he is being asked to cast his vote, and the current Scottish Government says one of the issues which they are going to make an election issue is their plan to introduce a Bill to legislate for independence.
“In order to know whether or not to vote for a party that claims it is going to do that, any informed voter has to know whether that claim can actually be carried out, or whether it’s just bluff and bluster.
“The idea that... we have a secret plan and you just vote for us because everything will be alright, that’s not how democracy works. It does not work on keeping things obfuscated, obscure, denying reality.”
Arguing against the claim that the case should be thrown out because Mr Keatings does not have appropriate "standing", Mr O'Neill suggested the argument amounted to treating the public as "plebs".
He instead compared his client to the anti-Brexit campaigner Gina Miller and said it was important that normal citizens had the right to engage in politics through the courts.
Ms Sturgeon has twice abandoned timetables for holding a new independence vote.
Her latest position is that one will be held early in the next Holyrood parliament if she secures a mandate in May.
However, Mr Johnson has repeatedly said he will not agree to a Section 30 order, which David Cameron granted ahead of the 2014 referendum, to allow a new vote to legally take place.
Ms Sturgeon has refused calls to embark on legal action to test whether Holyrood could hold a referendum on its own, arguing "it could set us back."
However, activists have defied her calls for "patience" and a two-day hearing began on Thursday.
SNP MPs Kenny MacAskill and Angus McNeil get behind Keatings court case so Scotland can have indyref 2 without Section 30 order from UK.
Martin Keatings plans to stand as a candidate on the Action for Independence (AFI) list at the Holyrood elections.https://t.co/SqPBovUFDZ
— Action For Independence (@action4indy) January 10, 2021
Mr O'Neill called on the court to resolve the "active dispute" over the issue, pointing out that Ms Sturgeon had pledged to publish a draft referendum bill before the Holyrood elections.
He said this suggested Scottish ministers believed they did have the power to hold a new referendum without UK Government permission, something Tory ministers strongly refute.
Mr Keatings, a full-time carer, is standing as an independent candidate in Mid-Scotland and Fife in May’s elections. The court heard that his legal action has around 10,000 supporters.
David Johnston, representing the Advocate General, the UK Government's law officer in Scotland, urged Lady Carmichael to dismiss the action.
“The problem with this action is it is in flagrant conflict with the statutory procedure,” he said. “This action is brought when there is no Act of the Scottish Parliament on whose legality the court can rule.
"And it is brought by a person who does not have standing to invoke the procedures set out in the Scotland Act, and it’s also brought in the wrong court.”
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