Martin Keatings has taken a case to Scotland’s Court of Session, seeking a declarator of the court that the Scottish Parliament has the power to legislate for another referendum.
He is part of the Forward As One group in the case against the Advocate General and Scotland’s Lord Advocate, in a virtual hearing before Lady Carmichael.
But David Johnston, on behalf of the Advocate General, suggested to the court on Friday a pursuer has to be directly affected and Mr Keatings “does not have standing to bring these proceedings and the rule of law does not require that he should”.
When asked by Lady Carmichael if that was removing a fundamental right, Mr Johnston submitted they were “not in the position to have an enforceable right” for the court to determine the issue.
He maintained the pursuer was not a member of the Scottish Parliament, adding: “The question is academic and the pursuer is not affected by the answer.”
The QC also suggested it appeared the Scottish Parliament had no intention to introduce a referendum Bill before the election on May 6, and while the Scottish Government can legislate to draft one, the “court cannot make assumptions” on the future Parliament or manifesto pledges.
Mr Johnston said there was “nothing anti-democratic” in denying Mr Keatings’s standing, saying society can “take the form of representative democracy”.
It comes after Aidan O’Neill QC told the court on Thursday his client Mr Keatings was representing public interest in the litigation, and expressed dismay at the defenders who “insultingly call him a mere busybody”.
Mr O’Neill said an answer on the issue “is absolutely required in order to inform votes of ordinary citizens in forthcoming Scottish elections”.
James Mure QC represented the office of the Lord Advocate as a second defender in the case, which he attempted to make clear was not Lord Advocate James Wolffe himself – also stating he is not a member of the SNP.
Lady Carmichael told the court on Thursday she expects to issue her ruling “within days rather than weeks”, adding on Friday she will “write very swiftly”.