/ANDY BUCHANAN / POOL (REUTERS)
London 05 February 2021. 19:55
Scotland’s highest civil court has declined to rule on whether the Scottish Parliament has the right to call an independence referendum without authorisation from the British government. Justice Aisla Carmichael of the Court of Session in Edinburgh ruled that the consultation submitted by pro-independence campaigner Martin Keatings is “hypothetical, academic and premature”, without her needing to express any opinion on the legal issues raised. He said he would have reached the same conclusion even “if there were any draft legislation to be considered” and therefore “it is unnecessary and inappropriate to give any opinion”.
The ruling is a setback for chief minister Nicola Sturgeon’s aspirations to challenge Boris Johnson, who is adamantly refusing to accept the idea of a second consultation. Keatings argued that such permission from the Westminster Parliament was not necessary and that any referendum law passed in the Scottish House, where the SNP has a majority, would be legal. Johnson repeats that he will not authorise a second plebiscite, but the Scottish National Party (SNP), which Sturgeon leads, wants to hold one if, as the polls predict, it wins a majority in the regional elections on 6 May.
The decision is a blow for the nationalists, but it has not surprised the experts, nor Keatings himself, who plans to appeal. “Lady Carmichael didn’t rule in our favour, but it’s still a victory at this level, because she didn’t rule against us either,” he tweeted. Her legal team argues that the absence of a roadmap to independence, which the SNP seeks, meant the judge had “no choice but to dismiss” the case as she did not possess “sufficient information” to consider the question was not hypothetical.
Prelude to legal battle
The ruling is seen as the prelude to a long legal battle between the SNP and its supporters against Johnson. “I don’t see how you can avoid ending up in court,” said David Hope, a former deputy president of the Supreme Court. The SNP is the favourite in the regional elections and Sturgeon has declared her intention to hold a second “legal” referendum. Johnson dodges the issue by recalling the anti-independence result in the 2014 referendum (55% to 45%) and how the nationalists themselves claimed it was “one in a generation”.
The Scotland Act 1998, which devolved powers to the Edinburgh Parliament and created the Scottish Assembly, stipulates that matters relating to the unity of the country can only be decided by the Westminster Parliament. To give powers to the Scottish Executive, Johnson would have to use Section 30 order, as David Cameron did in the 2014 referendum.