A LEGAL bid to find out if Holyrood has the power to hold a second independence referendum has been thrown out of court as “hypothetical, academic and premature”.

Lady Carmichael said Yes activist Martin Keatings, who had brought the case to the Court of Session on behalf of the Forward as One group, had also lacked the standing to do so. 

However, in a 72-page opinion, Lady Carmichael said the question of whether Holyrood could hold an independence vote without Westminster's consent could ultimately return to court at a later stage.

Mr Keatings, who argued he and other voters needed to know the legal position before May’s election, is expected to appeal to the Inner House of the Court.

The ruling sparked a row inside the SNP over the party’s approach to independence.

The SNP leadership last month published an 11-point plan for Indyref2 based on a pro-independence majority being re-elected in May.

It said that if Boris Johnson refused to transfer referendum powers to Holyrood under Section 30 of the 1998 Scotland Act, MSPs would pass their own Referendum Bill regardless and dare the UK Government to challenge it at the UK Supreme Court.

The senior SNP MP Angus Brendan MacNeil, who has argued the leadership should make the election a de facto Indyref2, tweeted after the court ruling: “No guarantee at all that there can be a Independence referendum in the next 5years of the Scottish Parliament ... “Feeling lucky? #gamble #11points.”

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In a crowd-funded action, Mr Keatings had asked the Court of Session for a ruling on whether the Scottish Parliament had the power to legislate to hold an independence referendum unilaterally.

The 1998 Scotland Act which brought about devolution states explicitly that the Union between Scotland and England is a matter reserved to Westminster.

However some academics argue Holyrood could still hold a non-binding vote on independence, albeit one which did not necessarily lead to ending the Union.

Mr Keatings had also sought a declarator on whether the SNP Government’s proposed referendum bill - which has yet to be published - would not be ultra vires.

During a two-day hearing last month, Aidan O’Neill QC, for Mr Keatings, told the court that voters in May’s Holyrood election need to know if Holyrood already had the power to legislate for another vote. 

But questions were raised by David Johnston QC, on behalf of the UK Government's Advocate General for Scotland, on the legal standing of Mr Keatings.

Lady Carmichael said Mr Keatings's action was  “hypothetical, academic, and premature, and the pursuer lacks standing to bring it”. 

She said that the lack of concrete referendum legislation left the court unable to rule on it, but added: “I would have reached the same conclusion even if a draft bill were available for consideration.”

The question of another referendum was "also hypothetical, and may never come to pass”.

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She went on: “It is, however, important, that matters which may properly be the subject of political debate and campaigning in the democratic process are permitted to unfold and be worked out in the political process, and that the courts intervene only when they need to do so to fulfil their function as guardians of the rule of law.  

“The courts will clearly intervene to determine allegations of unlawfulness. 

“Where, however, there is no allegation of unlawfulness, and the court is asked for a determination as to the state of the law in an area which is the subject of current political debate and controversy, it will be important to ensure that the question of whether an answer is required in order to protect the rule of law is addressed with rigour.”

The judge said it was “unnecessary and would be inappropriate for me to express an opinion on the question of law” given the case was based on an “assumption that a referendum is to be conducted, or has actually already been conducted, under an Act of the Scottish Parliament”.

In addition, no view was taken on “the intentions of the Scottish Government” in regards to any draft Bill.

She said both “the first defender [the Advocate General] and the pursuer [Mr Keatings] to some extent asked me to speculate… that would not be determinative of whether there was an issue of law on which the pursuer was entitled to a ruling from the court”.

Lady Carmichael concluded by highlighting that elected members are the ones “who then go on to make judgments, in their capacity as legislators”.

Mr Keatings, who is standing as a pro-independence candidate at the Holyrood election, said the result of "round one" of his action was in line with expectations and he was looking to appeal to the Inner House.

He said that while Lady Carmichael may have dismissed the cases as hypotehtical, academic and premature, it was "clearly done on a neutral basis", and it was "very unusual" of litigation of this sort to be settled at the first attempt in the Outer House of the Court of Session.

He said: "It was, for all intents and purposes a neutral ruling because she did not have available to her all the information she required to rule, and from first glance the ruling is highly appealable, especially considering the release of the 11-point plan, conveniently delivered to the public after the hearings."

He received support from SNP MP Joanna Cherry QC, who pointed out two other recent cases on triggering Brexit and the unlawful proroguing of Westminster has lost at first instance then won on appeal.

She tweeted: "Opinion of Lady Carmichael in #PeoplesAS30 #Keatings case is a long read but those crowing about a loss at 1st instance would do well to remember that both the #Wightman & #Cherry cases were lost at the 1st hurdle but won on appeal".