A VETERAN independence campaigner has warned that the SNP is “walking into a world of hurt” should it propose a draft bill to trigger a second independence referendum next year.
Martin Keatings, who is asking the Court of Session to declare that the Scottish Parliament can legislate for indyref2 under the Scotland Act of 1998, said that while the Programme for Government had spoken of the “moral” and “democratic” justification for a referendum, the word “legal” was conspicuous by its absence.
However, in the following two paragraphs of the document, they stated “the Scottish Government sought an agreement on an order under Section 30 of the Scotland Act 1998 to place a referendum on independence beyond legal challenge”.
They continued: “Because of the pandemic the Scottish Government paused work on independence, and it will clearly not be possible to organise and hold an independence referendum that is beyond legal challenge before the end of the current Parliamentary term next year”.
“These three paragraphs are a masterclass of spin,” he told The National.
“They talk about a Section 30 order. They talk about a referendum beyond legal challenge.
“The two are inseparably linked, and they deliberately miss out what happens if Boris Johnson refuses to grant a Section 30 order.”
The convener of Forward as One said a Section 30 order had already been refused three times – on TV by Theresa May; a written response from Boris Johnson; and in a letter from Scottish Secretary Alister Jack to SNP MP to Angus MacNeil.
There were several reasons the order was granted in 2014, not least because the Unionists thought they could win.
“We live in an age now where the Finance Minister for Scotland doesn’t even get briefings on serious fiscal information from number 10, where certain cross-nation committees have not been held for years, where there is a systemic attack on devolved powers by the Tories, the power grab,” said Keatings.
“The reason this draft bill has the word ‘draft’ in front of it, is because although it may be perfectly fine and well within the competency of the Scottish Parliament, the Scottish Government must know for a fact that is the case.
“This is why the Plan A advocates deliberately leave out the word ‘legal’, because they cannot state beyond all reasonable doubt – that’s because there has never been a clear ruling of the court that the Scottish Parliament can legislate for a second referendum.”
He said that a draft independence referendum bill would not formally be placed before MSPs until after next May’s Holyrood elections if the SNP are re-elected and would not be considered because of doubts over the Scottish Government’s legal competence to pass the legislation.
He stressed he was not doubting the Scottish Parliament’s legitimacy: “The case I have brought before the court is not ‘asking’ if the Scottish Parliament can legislate for a second referendum ...
“We are stating that we believe the Scottish Parliament has the power and we want the court to confirm that.
“But when you are a person putting a bill forward to the Scottish Parliament, it is not enough that you believe something is competent.
“You need to know that for a fact.”
Keatings said MSPs and the Presiding Officer had to declare the competency of a bill for it to become law, which was how the EU Continuity Bill had been open to a legal challenge from Westminster.
“The courts can only interpret the law as written,” said Keatings.
“So, while the Scottish Government and the UK Government were fighting in court, the Tories at Westminster modified an Act of Parliament which took specific provisions in the continuity bill away from Holyrood.”
This resulted in some sections in the bill being declared unlawful – just days after they were perfectly legal.
“This is where the SNP are walking into a world of hurt with this draft bill.
“The Scottish Government and indeed Parliament over the past 22 years have never asked the question of whether the Scottish Parliament can legislate for a referendum without permission from Westminster.”
It was not required in 2014 because a Section 30 order was granted.
But the issue has never been resolved or ruled upon in 22 years of the Holyrood Parliament.
However, he said that the draft bill would be put “into the open” in March.
He added that meanwhile in the background Westminster would start chipping away at it to kibosh the referendum forever.
Keating said: “You would think that the Scottish Government would have learned from their mistakes in the Continuity Bill, but unfortunately not.”
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