MARTIN Keatings’s pioneering case to prove Scotland could hold an independence referendum ultimately failed – but his bid has formed the cornerstone of arguments heard both for and against indyref2 in the Supreme Court last week.
But Keatings maintains the SNP have wasted precious time in getting a referendum through, though he says he is “cautiously optimistic” the court will side with the Scottish Government.
“Like watching a car crash in slow motion,” says Keatings when asked how he found watching the hearings last Tuesday and Wednesday, in which his name was mentioned frequently by both sides of the argument.
Keatings was behind a failed bid in 2020 to test whether the Scottish Parliament could, theoretically hold an independence referendum without Westminster’s permission – almost the same case heard in the court last week.
There were key differences: Keatings was acting as an individual, while the recent court case was a showdown between Holyrood and Westminster, and when he brought his case there was no independence bill on the table for a court to consider.
In a nutshell, the Scottish Government believes it has a case because its circumstances are not like the Keatings case, while the UK Government believes the two are of a piece.
The Court of Session tossed his case in 2021, deciding it would not rule on hypothetical matters, but the events of the past seven days have provided some encouragement to the DIY indy maverick, whose case at the time was dismissed by some as a “sideshow”.
Keatings said: “It becomes even more ironic because – most people didn’t see what was going on behind the scenes – what made it hypothetical and academic was the Scottish National Party refusing to publish the bill.
“If they’d published the bill then it wouldn’t have been hypothetical and academic at all, it would have actually been looked at by the Court of Session here in Scotland.”
The SNP did have a referendum bill drafted but refused to publish it at the time of Keatings’s crowdfunded court battle, though Lady Carmichael – the judge who ruled in his case – said even if a bill had been presented to her it would not have changed her opinion.
Keatings said this would have been different if the bill had included an “activation clause” which would mean the bill not become effective after it was passed and would only be activated by a separate procedure from the normal voting process.
He then argued that the SNP as a party could have joined his side in the court battle – which would have meant the party in government at the time would have been fighting against its own lawyer in Scotland’s top court.
While this does not align entirely with the UK Government’s arguments put forward by their lawyer James Eadie, it forms a key plank of their points as well as those of the Lord Advocate.
Keatings referred to the Lord Advocate’s case as a “watered down” version of his own case but said he still held some hope it could get past the judges – who are expected to make a decision “some months” from now, according to Lord Reed, the court president.
What makes the current Supreme Court case different from Keatings’s attempt is that it has been by the Lord Advocate Dorothy Bain, effectively the Scottish Government’s lawyer, who was asked by the First Minister for her legal opinion on whether the referendum bill was within the powers of Holyrood.
Bain’s arguments hinge on her saying she is genuinely unsure whether the bill is within the legislative competence of the Scottish Parliament.
She said she had brought the matter before the court because the question had not fully been settled in law – because the Keatings case was different from a genuine blockage in the parliamentary process.
A bill must be approved by Bain or her team before it can be introduced to the Scottish Parliament and in this case, she said she was not able to answer the question, deferring to the court’s judgement. Keatings maintains that a backbencher and the Presiding Officer could have agreed a referendum bill brought forward by any pro-Yes MSP not in the Government was within the powers of Holyrood, though this seems unlikely given the hotly contest legal challenge currently ongoing.
“Now we’re having to argue the same points again in the Supreme Court with a watered-down version, it’s just been a mess from start to finish,” he said.
Despite his dim view of the court case and the Scottish Government’s strategy, Keatings holds some hope judges’ ruling means a referendum can go ahead next year.
He said: “It is clear that there is most definitely an argument there, in what is a technical argument.
“Really it is a 50-50. I’m not leaning one way or the other.
“The optimism comes in with the fact that this situation really boils down to sovereignty.”
But his pessimism comes from what he believes is the conservative nature of the judges, who Keatings fears could rule for the maintenance of the status quo.
“The Supreme Court judges are all lords, they’re members of the House of Lords,” he said.
“Their titles and all that sort of stuff are predicated on the fact that the United Kingdom is in existence.
“There is always a human factor to these things, as much as we want to argue that they’ll only look at the legal provisions of something.
“But you cannot have any decision that is made by a human that is not in some way informed by some form of bias.
“When your bread and butter is based on a structure linked to the UK, you are going to have an inherent bias regardless of whether you admit it or not.
“The minute you enter a human component, the minute you have a human doing it there is always inherent bias.”
