THE action which sought a judgement on whether the Scottish Parliament could hold a second independence referendum was dismissed in the Court of Session this morning.

Martin Keatings of Forward as One had brought the crowd-funded action to try and get a ruling that a referendum could happen without Section 30 approval by the UK Government, which has already said it will not grant that approval.

Lady Carmichael had heard arguments from the Advocate General for the UK Government and from Scotland’s Lord Advocate James Wolffe QC.

The Scottish Ministers had withdrawn from the case and the Lord Advocate told the court he was acting in the public interest, saying “it would not be legally sound for the court to be drawn into expressing any view, in anticipation of a bill, on the questions of legislative competence".

READ MORE: Martin Keatings says Section 30 indyref case will go to higher court after 'hypothetical' dismissal

As The National reports elsewhere, Keatings has announced that the decision will be appealed to a higher court, the Inner House of the Court of Session. 

In a comprehensive 61-page judgement, Lady Carmichael summed up the case made by both sides.

The UK Government argued that “the pursuer (Keatings) lacks standing, that the action is hypothetical and premature, that the action is incompetent, and that it would, for a variety of reasons, be wrong as a matter of constitutional law for the court to grant the declarator the pursuer seek".

Keatings’ lawyers said: "He is a campaigner for Scottish independence. He pleads that as a campaigner, and as a voter in the forthcoming Scottish Parliamentary elections, he has a sufficient interest to give him standing to seek the orders that he does. He says he and other campaigners and voters need to know the legal position before the election, in order to determine how to campaign, and how to cast their votes.”

Lady Carmichael said that Keatings’ main arguments had been raised prematurely, were hypothetical and may never come to pass.

She wrote: “They proceed on the assumption that a referendum is to be conducted, or has actually already been conducted, under an act of the Scottish Parliament which may be ultra vires.

“First, each of these propositions depends on there being an act of the Scottish Parliament under which a referendum might proceed or have proceeded. It would be that act, as passed by the Scottish Parliament, that would require to be scrutinised as to its legislative competency.

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“Answers provided by the court now, whether in the abstract, or on the basis of a draft bill, would not serve to avoid the difficulties apprehended by the pursuer. Second, there is no need for the court to try to provide an answer at the present time. Other remedies would be available at the time any legislation came to be passed.

"The bill in question might be referred to the Supreme Court by a law officer before Royal Assent. If it were not, the act could be subject to judicial review after Royal Assent. That could all be achieved before any referendum was conducted in reliance on the act in question.

“It will generally, as I have already indicated, be premature and pointless for the court to adjudicate as to the lawfulness of a proposed act of Parliament at any point before it is passed, because it is open to change by way of amendment at the hands of the Parliament itself until it has been passed. Advice in the abstract, or about a draft, or even a bill as presented, would not necessarily avail Members of the Scottish Parliament who wanted to know whether their vote would result in the passing of legislation that was ultra vires.”

Lady Carmichael gave the court’s view on who has the decision making powers: “It is relevant to note, first, that the pursuer is an enfranchised voter in a system of representative democracy. In the forthcoming elections he and every other voter has the right to vote for representatives in the Scottish Parliament.

"It is correct to say that Parliament derives its authority, strength and legitimacy from the electorate. It is, however, the elected members who then go on to make judgements, in their capacity as legislators, as to what is in the country’s best interests as a whole.

“The representatives derive their authority from the voting decisions of the pursuer and others enfranchised to vote in the election. The proportions in which representatives from different parties, and independent candidates, are elected will no doubt affect what bills come to be introduced, what bills come to be passed, and the terms in which they come to be passed. It is, however, those representatives constituting the Parliament, and not the individual voters, who are the decision-makers in relation to the introduction, promotion and passing of legislation. I do not accept as correct the pursuer’s characterisation of individual voters as the decision-makers in relation to the introduction, promotion or passing of particular pieces of legislation.”

READ MORE: Section 30 court case will be inconclusive, public law expert says

In an important part of her judgement, Lady Carmichael emphasised that the court will intervene in cases of alleged unlawfulness by Governments – the principle that Prime Minister Boris Johnson and his Government are determined to overturn.

She wrote: “It is, however, important, that matters which may properly be the subject of political debate and campaigning in the democratic process are permitted to unfold and be worked out in the political process, and that the courts intervene only when they need to do so to fulfil their function as guardians of the rule of law. The courts will clearly intervene to determine allegations of unlawfulness.

"Where, however, there is no allegation of unlawfulness, and the court is asked for a determination as to the state of the law in an area which is the subject of current political debate and controversy, it will be important to ensure that the question of whether an answer is required in order to protect the rule of law is addressed with rigour.”

The case that has become known as the People’s Action on Section 30 has thus stumbled at the first hurdle, but will not end there.