THE Scottish Government has come under fire for its claim that Martin Keatings’ People’s Action on Section 30 is “inconsistent with the constant constitutional structures established by the Scotland Act”.

Aidan O’Neill QC, for the convener of Forward as One, was addressing a virtual sitting of the Court of Session as he sought a declarator that the Scottish Parliament has the power to legislate for indyref2 without “permission” from Westminster in the form of a Section 30 order.

The Advocate General for Scotland, Keith Stewart QC, and Lord Advocate James Wolffe QC, are defending the action on several grounds, including that “the pursuer has no title, interest or standing to bring the proceedings”, which they claim are “incompetent”.

O’Neill said the Scottish Government saw it as being “all about parliamentarians”, while the Lord Advocate said they were “dealing with these big constitutional issues”.

He said: “It’s not to do with mere voters, not to do with those not in Parliament. So trust the parliamentarians, trust the law officers. They’ll deal with it, they’ll get to the court if they feel like it … when frankly that’s just unsupportable.”

O’Neill suggested the defenders were “saying it is in the public interest they are kept in ignorance on an issue of law and the constitution, in which the current Scottish Government has said its party will run on and make an election issue in the imminent Scottish Parliament elections”.

However, he said: “The answer is absolutely required in order to inform votes of ordinary citizens in forthcoming Scottish elections.”

The QC said Keatings was the one representing public interest in the action, and expressed dismay at the defenders who “would insultingly call him a mere busybody”.

The opening session had got off to a fractious start following an ill-tempered exchange between O’Neill and judge Lady Carmichael.

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She had described a previous hearing in the case as a “fishing diligence”, when the QC sought to establish whether Wolffe was working for the Scottish Parliament or Scottish Government. He had anticipated a written decision from Carmichael and told her he would be left fighting “this case with one arm tied behind my back”.

After a brief exchange, the judge called an immediate adjournment and, when the court reconvened 20 minutes later, the matter appeared to have been settled, or at least put to one side.

O’Neill turned to the competence issue and said the Lord Advocate claimed that before Royal Assent, questions of legislative competence were exclusively for those identified in the Scotland Act – that was himself and the other UK law officers.

“That’s nice. It’s nice but it’s not true,” he said. “This is a democracy. It is not an oligarchy. It is not a juristocracy, even.

“A democracy means that any individual citizen has the right, and a standing to take issues, upon which for their own political reasons are required to be known in order to properly exercise the right to vote – matters, which the legislature and or the law officers and or the government, [would] rather not have before the courts. In the vacuum which has caused thereby by their inaction, there is no exclusion over voter participation, or voters’ rights to come to the court, rather that is precisely when one does, in fact, assert that.”

He said there was “no argument that a potential referendum on potential independence can be said to relate to the reserved matter or breach section 287 of the Scotland Act”. This was a “perfectly coherent case” and the purpose of a referendum was “one of consulting the people of Scotland about the possibility of future constitutional change in the UK”, which O’Neill said was fully in accordance with the principle of democratic accountability.

David Johnston QC, for Stewart, said the case “ought not to be in this court in the first place” and should be a matter for the UK Supreme Court.

He added that there was “no quarrel with democracy” and the importance of its values.

However, he suggested what was missing from the argument is recognition of a representative democracy and “not every decision is taken by the electorate, rather they elect their representatives” as the “form of democracy we have chosen”.

O’Neill also praised Keatings’ work and crowdfunding, saying the country “should be encouraging this kind of political engagement” outwith Parliament.

The hearing continues.