‘I consider that it is unnecessary, and would be inappropriate, for me to express an opinion.” That was Lady Carmichael’s conclusion yesterday in the case of Martin Keatings v the Advocate General for Scotland. On the open legal question of whether Holyrood has the legislative competence to hold a second independence referendum – no answer.

Lady Carmichael wasn’t shirking her duties in reaching this conclusion. The crowdfunded action, she concluded, was “hypothetical, academic and premature, and the pursuer lacks standing to bring it”.

The outcome? No outcome – and hundreds of thousands of pounds burnt through, with nothing much to show for it.

Folk didn’t want to hear it, but this was always the most likely outcome to this case. The case for optimism was based on selective quotations from earlier judgments, and ignoring the weight of evidence and legal opinion that this case wasn’t going anywhere.

So why was this case hypothetical and premature? Lady Carmichael’s judgment is 72 pages long, but here’s the heart of it. The action was trying to establish the principle that a referendum on independence held within Holyrood’s existing powers would be lawful. The problem? It was trying to persuade the court to express a hypothetical opinion on the hypothetical legislative competence of a hypothetical referendum bill.

You can find an “ask a judge” column in your local newspaper. Even if you are prepared to blow the better part of £200,000 on the enterprise, you’ll eventually discover real courts don’t work that way. They don’t answer legal questions just because they’re interesting.

None of this should be surprising if you read earlier decisions in this case with care. In the summer of 2020, the Court of Session already gave a powerful steer that the case would end this way. Refusing their application for a protective costs order last July, Lady Poole pointed out to the pursuers that “the court does not exist to determine questions in the abstract, including hypothetical questions about the competence of possible forms of future legislation” – and yet this is precisely what this legal action was attempting to convince the court to do. 

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Yesterday, the judge concluded that “consideration by a court of proposed legislation will normally be hypothetical and premature at any point before it is in its final form and has been passed by Parliament”. Is she wrong? After all, as she points out, it can be changed as MSPs work their way through it. Legislation which on the face of it was perfectly lawful when introduced can accrue amendments which might be legally problematic. Who can say until you have the final product to work with?

The Scotland Act says the courts have the power to decide whether acts of the Scottish Parliament fall within or outwith Holyrood’s legislative competence. Judges are instructed to look at specific provisions of that legislation, to think about their “purpose and effect”, and if they “relate to” a reserved matter.

Think about it. How can a judge do this work before they have a concrete piece of legislation to consider? When you’ve got no final provisions to look at, how can you judge whether they specifically fall within Holyrood’s powers, or outside them?

You can’t – and that’s why Lady Carmichael concluded that this court action was hypothetical and premature yesterday. She’s right. It is. If there are votes for a second independence referendum to be mustered in Edinburgh, then it’s for Holyrood to pass the legislation, and for the UK Government to make the case in court against it, taking the political hit for attempting to frustrate that democratic mandate and risking an adverse finding.

The organisers of this action have already expressed their intention to soldier on into the Inner House of the Court of Session. Money, it seems, is no object. It should be. There are umpteen better ways for supporters of independence to invest their savings, time and emotion. Some cases are won on appeal, it is true, but there’s a snowball’s chance in hell this will be one of them. Pouring more cash into this doomed exercise is just throwing more good money after bad.