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Appeal court judges said it would be “premature, hypothetical and academic” to rule on the matter when the result of the Holyrood election is not known and there is no independence Bill before the Scottish Parliament
The judges earlier this month heard an appeal over a case brought forward by independence campaigner Martin Keatings on behalf of the Forward As One group, asking the court to declare the Scottish Parliament has the power to legislate for another vote.
After a two-day hearing in January, Lady Carmichael dismissed the case and ruled it was “plainly raised prematurely”, and that the question of another referendum was “also hypothetical, and may never come to pass”.
At an appeal hearing at the Court of Session on April 6, Aidan O’Neill QC, appearing for Mr Keatings, said it is clear the Scottish Parliament could legislate for an independence referendum and he urged judges to make a decision before the Holyrood election on May 6 so people do not have to vote “in ignorance”.
Mr O’Neill said the Scottish Government has published a draft Bill for a second vote on independence and Constitution Secretary Mike Russell has said the Bill will be introduced if the SNP wins a majority at the election.
In a judgment published on Friday, judges refused the appeal by Mr Keatings, who is standing as an independent candidate for Mid-Scotland and Fife on May 6.
Delivering the opinion of the three judges, Lord President Lord Carloway said: “At present, there is no Bill before the Parliament, although there is a draft Bill. A draft Bill has no legal status. The result of the election is not yet known.
“A Bill may or may not be introduced, depending upon the government formed as a consequence of the election.
“If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended.
“The UK Government may or may not be prepared to obtain an Order in Council under section 30 of the 1998 Act, which would, in any event, allow the Bill to proceed to Royal Assent.
“If the Bill were passed without such an Order, it is highly probable that the UK Government’s law officers would refer the Bill for scrutiny by the UK Supreme Court.
“All of these eventualities render the current remedies sought premature, hypothetical and academic.
“A decision by this court on the matters litigated would serve no practical purpose.”
However they allowed an appeal by the Lord Advocate against the part of the earlier decision that ruled the action fell within the court’s jurisdiction.
The Lord Advocate argued the court did not have jurisdiction to consider the application because the Scotland Act 1998 makes clear that the only court which could scrutinise a Bill prior to Royal Assent is the UK Supreme Court.
In the opinion issued on Friday, the judges allowed the Lord Advocate’s appeal, ruling the action was inconsistent with the Scotland Act 1998 which established the Scottish Parliament.