A COURT case that could help decide whether Scotland can have indyref2 without the approval of the UK Government is being delayed due to coronavirus.

The National can reveal that the court action by the independence group Forward As One Scotland (FOAS) has been formally lodged in the Court of Session, but any progress on the case has been delayed as a result of the pandemic.

FOAS were seeking a judicial review of the decision by Prime Minister Boris Johnson to disallow a second independence referendum as sought by First Minister Nicola Sturgeon under Article 30 of the Scotland Act.

With a crowdfunding exercise FOAS raised £40,000 to take the action to the courts, and has employed one of Scotland’s top constitutional lawyers, Elaine Motion of Balfour + Manson.

Motion represented 78 parliamentarians in their successful challenge against the Prime Minister’s decision to prorogue Parliament for five weeks, and 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.

The Scottish Government, which is a party to the case in the Court of Session, had asked FOAS to delay the action, a process known as “sisting” in Scots law, due to pressure of work caused by the pandemic.

FOAS carried out a survey among its backers of three possible options on the case, which effectively seeks to force Westminster to accede to a second independence referendum, and voted for sisting.

FOAS convener Martin Keatings told The National: “I can confirm that as per the preferred option expressed by those backing the court action, that the papers, along with the motion to sist the action temporarily in light of the Covid-19 crisis, have been formally filed with the court.

“The court has confirmed that due to current measures in place due to social distancing et al, these papers have been queued pending the working out of the appropriate logistics enabling the resumption of normal operations.

“The time taken for this to happen is, understandably, up in the air at the moment, and by the time the court resumes normal operations, we may find that it renders the sist effectively unnecessary but we will proceed based on evidence as things progress.

“That being said, taking the action to pause and enable the Scottish Government to be in a position to make proper representations was the right thing to do.

“Ultimately the case boils down to asking the court to exercise its primary reason for existing, to render an opinion on a perfectly reasonable question on a matter of law which thus far politicians have had diametrically opposing viewpoints on, and have been unable to give clarity to the general public.

“We must, therefore, ensure that the way in which we approach that question is also reasonable and the current climate means that the reasonable thing to do is to allow the Scottish Government to be on solid ground, and indeed that we are flexible with the court as it battles with the severe disruption it is currently experiencing.”

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The office of the Advocate General for Scotland, Lord Richard Keen QC, has intimated that the case will be contested by the UK Government.A COURT case that could help decide whether Scotland can have indyref2 without the approval of the UK Government is being delayed due to coronavirus.

The National can reveal that the court action by the independence group Forward As One Scotland (FOAS) has been formally lodged in the Court of Session, but any progress on the case has been delayed as a result of the pandemic.

FOAS were seeking a judicial review of the decision by Prime Minister Boris Johnson to disallow a second independence referendum as sought by First Minister Nicola Sturgeon under Article 30 of the Scotland Act.

With a crowdfunding exercise FOAS raised £40,000 to take the action to the courts, and has employed one of Scotland’s top constitutional lawyers, Elaine Motion of Balfour + Manson.

Motion represented 78 parliamentarians in their successful challenge against the Prime Minister’s decision to prorogue Parliament for five weeks, and 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.

The Scottish Government, which is a party to the case in the Court of Session, had asked FOAS to delay the action, a process known as “sisting” in Scots law, due to pressure of work caused by the pandemic.

FOAS carried out a survey among its backers of three possible options on the case, which effectively seeks to force Westminster to accede to a second independence referendum, and voted for sisting.

FOAS convener Martin Keatings told The National: “I can confirm that as per the preferred option expressed by those backing the court action, that the papers, along with the motion to sist the action temporarily in light of the Covid-19 crisis, have been formally filed with the court.

“The court has confirmed that due to current measures in place due to social distancing et al, these papers have been queued pending the working out of the appropriate logistics enabling the resumption of normal operations.

“The time taken for this to happen is, understandably, up in the air at the moment, and by the time the court resumes normal operations, we may find that it renders the sist effectively unnecessary but we will proceed based on evidence as things progress.

“That being said, taking the action to pause and enable the Scottish Government to be in a position to make proper representations was the right thing to do.

“Ultimately the case boils down to asking the court to exercise its primary reason for existing, to render an opinion on a perfectly reasonable question on a matter of law which thus far politicians have had diametrically opposing viewpoints on, and have been unable to give clarity to the general public.

“We must, therefore, ensure that the way in which we approach that question is also reasonable and the current climate means that the reasonable thing to do is to allow the Scottish Government to be on solid ground, and indeed that we are flexible with the court as it battles with the severe disruption it is currently experiencing.”

The office of the Advocate General for Scotland, Lord Richard Keen QC, has intimated that the case will be contested by the UK Government.

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