IN an unprecedented court action, a group of independence activists are seeking a judicial review of Boris Johnston’s decision to refuse the Scottish Government the right to have a second independence referendum.
Forward as One Scotland (FOAS) have raised more than £40,000 through crowdfunding to take the UK Government to the Court of Session.
They have employed one of Scotland’s top lawyers, Elaine Motion, who represented 78 parliamentarians in their successful challenge against Prime Minister Johnson’s decision to prorogue parliament and who was the lawyer for the 2018 European Court of Justice challenge that confirmed that the UK can revoke the Brexit process without the say-so of fellow EU states.
Now a decision is being made on whether Forward as One should delay the case – “sist” is the Scottish legal term – due to the coronavirus outbreak, with those who follow the group on Facebook being asked to take part in a survey which gives three options.
The office of the Advocate General for Scotland, Lord Richard Keen QC, has already intimated that the case will be contested, and the Scottish Government, a third party in the case, has asked FOAS to delay the court action due to pressure of work on coronavirus.
FOAS convener Martin Keatings wrote on Facebook to its members and funders: “I told you all at the beginning of this journey, to establish the constitutionality of our parliament to legislate for a second referendum without the consent of Westminster, that this is your action and you would call the shots. Just as legal counsel take instructions from us, we take instruction from you.
“At last posting, I stated that we’d had the summons back from the court and had served it on the Advocate General of the UK Government and also to the legal Counsel of the Scottish Government, starting a statutory 21-day clock bringing us to April 14, 2020.
“On the April 14, 2020, we would then file the summons with the court and at this point it will have been considered as formally being “called in court”, starting a seven-day clock for the UK and the Scottish ministers to respond.
“Had this request been made by the UK Government, we would likely not be having this conversation. However, this request was made by our Government here in Scotland.
“Covid-19 is putting our Government here in Scotland under unprecedented strain, its legal team concentrating on the drafting and refinement of legislation and dealing with other legal matters surrounding the health and welfare of those within Scotland’s borders. A delay to these measures at this time could have far-reaching consequences.”
Keatings asked for a vote on three options: carrying on with the case, holding off filing the summons in court “until the crisis has abated”, or sisting the action, which would put the case on hold for at least three months after the summons is filed on April 14.
Keating added: “This latter option would require the agreement of all parties and of the court, however, based on the unprecedented situation we all find ourselves in, it is doubtful that either the parties, nor the court would take any issue with this. This would be my preferred option, but ultimately, I am reaching out to seek your opinion on how to proceed.”
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