By way of an update on the case. The 8 weeks "adjustment period" where parties refine their submissions to the court, closed at 5pm. Submissions from the Lord Advocate (on behalf of Scottish Government) and the Advocate General (UK Government) arrived at 4.30pm. 

These submissions are still confidential and so cannot be disclosed at this point. Certain procedural matters will now take over and I should be able to layout a timeline shortly. In the meantime, I will, of course, update you on any news as it becomes available. 

As always, I hope you are all safe and well.

All the best, Martin Convener - Forward as One 

We have just received confirmation from the court that the court has accepted the open record from our legal counsel.

To clarify, the open record is a collection of the pertinent documents for the case from all parties, it is prepared into a bundle with all of the parties documents to be provided to the court. 

In addition, each page is labelled with a specialised numbering system which means it is easy to flip to the pertinent page.

This means that during arguments in court (and indeed written arguments) when a member of legal counsel for any party makes reference to a specific line on a specific document, everyone that is party to the case knows exactly where it is in the bundle, from the Judges right down to the solicitors.

With this now being lodged and accepted, the court has now set a date for the 8 week adjustment period, that is to say the time in which all parties can build on and refine their arguments. This period commences on the 27th of May and will finish on the 22nd of July 2020. By mid-July, we should have an estimated court date. 

As always, if there are any further updates, I will advise you all. 

Martin

Dear Backers,

As you will recall from my email last week, we opposed the motion to sist (pause the case) for 3 months and the Court found in our favour, denying the request for an extension on the basis that the Governments could lodge a "skeletal" defence in the first instance and then use the standard 8 week adjustment period to refine their arguments there-after. 

As part of our opposition to that motion, we extended on an offer of increasing the period for lodging defences in the case by 1 week to the other parties, bringing us to yesterday, the 20th of May 2020. In addition, we expressed that we'd be willing to consider reasonable requests for a small extension at the end of the 8 week adjustment period if it transpired the current climate had caused issues with meeting court deadlines. The court agreed with our assessment.

Now, throughout this process, I have wanted to give you all insight into the inner workings of the court and to detail for you, the intricacies, pitfalls, processes and complexities. If for nothing else, but to show you that the judiciary are a critical part of our society, despite the demonisation that the UK Government currently partakes in by trying to brand the judiciary as "enemies of the people" for their own political gain. 

So it is with heavy heart and also a bit of frustration that I must inform you that because the case is in its early days, although both the Scottish and UK Governments lodged their defences between 4 and 5pm, on time, we have been unable to gain their permission to publicly release the defences they have lodged, a requirement to be able to do so.

It had been my hope to give you an in-depth update tonight, but unfortunately, that is not going to be an option. Which is a shame considering the substantive public interest with this case and also the massive backing from all you guys (all 1900 of you). Alas, at the moment it is not to be.

We're not quite sure why consent to publish is being denied, but we're giving them the benefit of the doubt at this stage, that because they were unable to obtain the 3-month extension last week, and therefore have lodged only skeletal defences, they would rather not have their defences released until such time as they have had an opportunity to revise, expand, adjust and refine their arguments over the coming weeks.

At this stage we are now in limbo, it will be an 8 week adjustment period where correspondence is exchanged and arguments refined. There may, of course, be some procedural hearings or administrative motions etc and if there are, I shall, of course, refer back to you with an update. 

Sincerely

Martin

Dear Members, Supporters & Backers,

We have a decision to make in the Action against the UK Government on Section 30.

I’d like to begin by wishing you all well in these unprecedented times. I hope that each of you are well and that you are all safe.

I would never try to compare the decision I am asking you to make tonight, to the decisions that you are having to take in your daily lives at the moment, to protect the wellbeing of your friends, of your family and of each person within Scotlands borders. But in a time where so many rights are having to be curtailed temporarily to fight against COVID 19, I am cognisant of the preciousness of being able to retain a modicum of control over matters which directly affect you.

I told you all at the beginning of this journey, to establish the constitutionality of our parliament to legislate for a second referendum without the consent of Westminster, that this is your action and you would call the shots. Just as legal Counsel take instructions from us, we take instruction from you.

At the start of this, I also told you that we would be seeking to keep the Scottish Ministers in the loop and would be calling them as a party to the action so they could put forward their own representations to the court.

At last posting, I stated that we’d had the summons back from the court and had served it on the Advocate General of the UK Government and also to the legal Counsel of the Scottish Government, starting a statutory 21-day clock bringing us to the 14^th of April 2020.

On the 14^th of April 2020, we would then file the summons with the court and at this point it will have been considered as formally being “called in court”, starting a 7-day clock for the UK and the Scottish Ministers to respond.

Had this request been made by the UK Government we would likely not be having this conversation. However, this request was made by our Government here in Scotland.

COVID 19 is putting our Government here in Scotland under unprecedented strain, its legal team concentrating on the drafting and refinement of legislation and dealing with other legal matters surrounding the health and welfare of those within Scotlands Borders. A delay to these measures at this time, could have far-reaching consequences.

The aim of independence has never just been about autonomy for Scotland, more fundamentally, it is about protecting the wellbeing of every man, woman and child in Scotland. If we were to cause harm or injury to the emergency steps being taken by the Scottish Government by diverting resources from them at a time when they are in the early stages of containing the spread of a virus, we’d be achieving only 2 things; working against the good health of our own people and also denying the Scottish Ministers an opportunity to show that, in fact, it is more than capable of governance in hard times, not just good.

This morning, we received, from the legal counsel of the Scottish Ministers, a request not to file the summons with the court at this stage until the Corvid-19 crisis has abated in order to ensure their resources are not diverted. I am now asking you to give consideration to the following three choices and I am asking all of you to make the decision.

1. We can continue as-is, along the timetable we have established already, however, with the sheer volume of legal work being performed by the Scottish Ministers legal team on the matter of COVID 19 and with staff displaced due to quarantine and self-isolation protocols, it is likely the Scottish Ministers would not be fully prepared to make their case. This could have a detrimental effect on what we are attempting to achieve. Namely, that it is within the legislative competence of the Scottish Parliament to legislate for holding a second referendum without the consent of Westminster

My own opinion on this is that it would be inappropriate because the last thing we want is an uninformed representation from the Scottish Ministers on this matter. It may not benefit the case and I am cogniscant of the deleterious effect it may have on the country as a whole. I am therefore urging you not to choose this option.

2. The second option is to hold off on filing the summons with the court and not having it call in court until the crisis has abated. This is the request made by the Scottish Government.

My own opinion on this is that this should be the second option because the resultant backlog of the court at the end of this health emergency will put us in a position of having to wait longer than we would otherwise like. However, if the membership vote for option the third option, this would be a backup if it could not be achieved.

3. The third option is what is known as “sisting” the action. In this option, we would seek, by mutual agreement with the Scottish Government, to effectively hit the pause button  after  we filed the summons with the court. With an agreement in place, we would file the court summons on the 14^th of April as planned, but along with it, an agreement between the parties of the case to put aside the 7-day time limit and replace it with a halt. Generally the court will halt only for a three month period.

In effect, the decision to put the case on hold could be re-evaluated every 30 days and any of the three parties to the case could restart the action by notifying the other two in writing of their intention to do so, filing with the court the necessary paperwork to recall the sist action. All parties would have to be aware of this review before going down this route and agree not to oppose any motion to recall the halt.

This option has a number of intrinsic benefits over the second option. Firstly, it moves the case forward to a stage of readiness where all parties are in no doubt that when the current situation settles down a bit, it will be proceeding.

Secondly, it is not one party telling the other party what it can or cannot do, or putting one party in a dominant position over others. It would be a clear-cut matter of agreement by equal parties to simply pause for the wellbeing of those around us.

Thirdly, it would ensure that the UK Government are held to playing fair and that they are in no uncertain terms about the fact that any attempt to try and found upon the current health emergency for partisan political gain will see us pull the metaphorical trigger on proceeding to court. In effect keeping them honest.

Fourthly, it ensures the claims place, regardless of what happens, in the proverbial court queue, so when we emerge from the early days of this healthcare emergency, we can hit the ground running.

Finally, and I think most importantly, a mutual agreement at this point would show clear unity with our Ministers here in Scotland in terms of ensuring the safety and the wellbeing of the people of Scotland by ensuring that their legal resources are dedicated to that task.

This option would require the agreement of all parties and of the court, however, based on the unprecedented situation we all find ourselves in, it is doubtful that either the parties, nor the court would take any issue with this.

This would be my preferred option but ultimately, I am reaching out to seek your opinion on how to proceed. I can only give you my thinking on the matter but ultimately the choice is yours.  I await your responses.

Link to the Poll: https://www.surveymonkey.co.uk/r/YGLJ23X 

Sincerely,

Martin James Keatings

Convener

This afternoon I received confirmation from legal counsel that the #PeoplesAS30 Summons has come back from court and is ready to serve on the Advocate General of the UK. The question was asked as to whether we should hold off on doing so, based on the current turmoil.

I am fully aware that the First Minister has halted campaigning for the foreseeable future due to #Covid19. However, this case stands separate from any party or any parliament. It is the will of members of the ordinary electorate.

Where physical campaigning may cause issues with this pandemic and therefore a pause is warranted, more administrative processes such as judicial review should have no effect.

After carefully considering all of the different issues and opinions on the subject I have come to the following conclusions:

1.While the campaign itself may have temporarily halted, the constitutional wheels keep on turning. Unfortunately, the incumbent Government at Westminster has been proven to be less than forthcoming in its dealings with Scotland and our parliament.

Just because MSPs take the high road, does not necessarily mean that the old adage of a disaster being a “good time to bury bad news” doesn’t still apply and we have seen Westminster act in an unscrupuiolous manner on a number of occasions. Acting in good faith is not something I would associate with the incumbent UK Government. They have, in fact, demonstrated acts of bad faith on multiple occasions. Not least the dismissive and contemptible attitude displayed towards the Scottish Parliament. Point and Case....Section 30 and the Continuity Bill.

2.There is a good chance that in the background, the UK Government will seek to undermine the Scottish Parliament in the coming months and if the Union Parliament is suspended, this would mean the UK Government cabinet effectively operating in isolation and with impunity, no MP’s being present to challenge certain actions they may take.

3.The current situation with respect to the huge powers that the UK Government will have under Henry VIII powers as legislated for in the European Union (Withdrawal) Act, allowing them to modify up to 1000 laws without parliamentary scrutiny is also of great concern.

A Government operating with no parliament and with such powers has the potential to be a seriously destructive force.

4.With this in mind, the question falls to quite a simple premise. Does holding off on action make any difference? Afterall, it is likely its calling before the court will be delayed anyway due to the current Covid issues. Also, it is likely a later filing would also be delayed due to backlogs in the system.

5.The action in court is separate from any action which the Scottish Parliament may take with respect to legislating on a second referendum, but this action gives complete clarity to parliament for whatever it may decide. Whether that decision is in a month of 6 months, the question still needs to be asked and answered. Ultimately, the timing of that answer will be a matter for the court anyway and if delay is required due to Covid19, the court will simply state it to be the case. However, filing now would mean we'd be first in line at the conclusion of current containment measures.

6.With the major constitutional and economic issues at play now, the balance must tip towards ensuring this question of law is answered in as timely a manner as possible, else the clarification would likely have to come after the Scottish Parliament tried to legislate (if it ever did), it is and always has been more conducive to clarify this issue prior to moving forward.

7.I am also acutely cognisant of the fact that when everything is up in the air, there needs to be some semblance of normality, of daily life proceeding, despite what may be going on. But with so much at stake constitutionally speaking and the current situation being finite and not likely to persist over the longer term vs the damage that could be done to Scotland in the short term, it is better to fall on the side of caution. If anything a bit of clarity would be a positive thing in the current climate.

On the basis of the above and more, we have therefore decided to proceed.

Therefore, as of this afternoon, Legal Counsel were formally instructed to proceed with summonsing the Advocate General of the United Kingdom and to proceed with Judicial review on whether it is constitutional for the Scottish Parliament to legislate for a second referendum independently of the Union Parliament and without modifying the Scotland Act.

I am fully aware that there may be dissenting opinions and detractors with respect to the decision to proceed and I want you to know that I have listened and taken on board opposing feedback. However, weighing the pro's and cons tips the scales between proactivity and reactivity.

We are therefore being proactive, not reactive.

Covid 19 doesn't seem to be slowing the UK Governments brexit agenda, therefore it is incumbent on us to ensure that it does not negatively impact the move towards asking the constitutional question.

Martin Keatings

Convener

Forward as One

We have now formally had a response from the Advocate General of the UK, they state as follows:

"We refer to your letter of 31 January 2020. The United Kingdom Government’s position is that it is outside the legislative competence of the Scottish Parliament
to legislate for and hold a referendum on Scottish independence."

It is now time to formally seek the opinion of the court and test the matter under judicial review.

More to follow

This afternoon I gave authorisation to Legal Counsel to formally intimate pre-litigation correspondence to the Advocate General, providing copies to the Scottish Governments Legal Department and to the Lord Advocate. The UK Government now has 14 days to respond. 

A copy of the letter has been posted publicly on twitter here: https://twitter.com/MartinJKeatings/status/1223298260388995073 

Sincerely

Martin Keatings

Convener, Forward as One.

We are writing to confirm that Crowd Justice have now formally transferred the funds from this crowdfund to the Law Firm.

The confirmations have been published on both Facebook and Twitter

Twitter: https://twitter.com/PeoplesAS30/status/1220647352152862721 

Facebook: https://www.facebook.com/ForwardAsOneScot/posts/1532715670214794 

Good Morning Scotland.

With respect to the Peoples Action on Section case overseen by Forward as One - Scotland, a conference call this morning between 9am and 9.25am has laid the groundwork for next steps.

While not a requirement in Scotland, it is always beneficial to ensure that everyone knows where they stand. Consequentially, in consort with Legal Counsel Elaine Motion, we have decided to move to the pre-litigation stage as of this morning.

Instructions will be given to our QC to move forward with the drafting of a pre-litigation letter over the next week to be sent to the Office of the Advocate General (OAG). the UK government’s Scottish legal team.

The letter will clearly define a timescale, amongst other things (approx 14 working days) from receipt of the letter, for the Advocate General to respond, at which time the commencement of legal action will commence.

Good Morning Scotland.

With respect to the Peoples Action on Section case overseen by Forward as One - Scotland, a conference call this morning between 9am and 9.25am has laid the groundwork for next steps.

While not a requirement in Scotland, it is always beneficial to ensure that everyone knows where they stand. Consequentially, in consort with Legal Counsel Elaine Motion, we have decided to move to the pre-litigation stage as of this morning.

Instructions will be given to our QC to move forward with the drafting of a pre-litigation letter over the next week to be sent to the Office of the Advocate General (OAG). the UK government’s Scottish legal team.

The letter will clearly define a timescale, amongst other things (approx 14 working days) from receipt of the letter, for the Advocate General to respond, at which time the commencement of legal action will commence.

16th January

Scottish Government could hold indyref2 WITHOUT Johnson's permission

https://www.thenational.scot/news/18166514.scottish-government-hold-indyref2-without-pms-permission

We pleased to confirm that we have now hit our target for the people's action against the UK Government. 

We have formally published the opinion from senior legal counsel here

A copy of the convener's confirmation to legal counsel of achieving the funding goal can be found here

As if things were not bad enough, now the stakes for this case are even higher. We warned when we launched this funding campaign how serious things would get this month and now this has been confirmed.

In the last week

- Alistair Jack has said he has advised the PM against another referendum.

- Alistair Jack has said there should be no referendum for the entire life span of Nicola Sturgeon.

- Boris Johnson has now drafted a three-page letter to be delivered REFUSING a section 30 request, which we said would happen but were told was "unlikely".

And now something many people might have missed, a bill currently with the House of Lords designed to effectively make a second referendum unconstitutional unless a series of highly unreasonable conditions are met.

The "Referendums Criteria Bill [HL] " (full text here) is now with the House of Lords.

We've put an excerpt from the first paragraph for you below, highlighting the conditions which would need to be met for a second independence referendum if this becomes law (which with a Tory Majority is highly likely).

If this gains royal assent before we file our case, the following would apply to any future referendum.

1. It would require a vote in the house of lords and the house of commons.

2. The number of MPs or Lords who vote in favour of a referendum MUST equal 2/3rds or more IN BOTH HOUSES. A virtual impossibility.

3. IF a referendum then happens, at least 55% of the REGISTERED electorate must vote in it for it to be valid.

4. and here's the kicker. A rule which has not reared its head since Scotland was denied a parliament in 1979. Back then, it was called the "40% rule" which meant that 40% of the entire registered electorate had to vote in favour of a parliament for it to happen (around 65% of those who voted). We got a majority, but because of this rule, we were denied our parliament.

The modern equivalent of the rule is what is in this bill, namely 60% of those who vote in the referendum would have to vote YES for independence. Yes! 60% of those who vote in indyref2 would need to vote yes.

Our case is now imperative. There's no more time! We have less than 4 days to raise our target, or the case falls. We have to hit our target!

.

Link to the crowdfunder: https://www.crowdjustice.com/…/the-scottish-people-vs-the-uk

We're just posting an update to the current status of the crowdfunding action. As previously stated, Crowd Justice do not take donations at the point of pledge but only when the fundraiser hits its target. Those funds are then transferred directly to the law firm. So if we don't hit the target in 19 days, there will be no action.

The current status is:

£40,000 raising

£9,297 ,raised

363 pledges

23% funded

19 days left 

In a letter to Boris Johnson on the 19th of December, Nicola Sturgeon formally put the request for Section 30 to the PM.

We understand that gaining access to that letter can be somewhat of an issue as many of the press outlets who covered it use a paywall.

For the reference of everyone, below is the text of that letter from Nicola Sturgeon to the Prime Minister. The link at the bottom is the direct link to the opinion attached to that letter entitled: "The people of Scotland’s right to choose their future"

Nicola Sturgeons Letter to Boris Johnson, 19th December 2019

Dear Boris,

I said on Tuesday that I would be publishing the detailed democratic case for the transfer of power from Westminster to the Scottish Parliament, now being sought by the Scottish Government, by order under section 30 of the Scotland Act or an Act of the UK Parliament, to allow for an independence referendum that is beyond legal challenge. I am enclosing a copy of that document.

When we spoke on Friday, you reiterated your government’s position on this issue - however, you also committed to engaging seriously with our proposals. Indeed, I believe that on this - as on any issue - you have a duty to do so in a considered and reasonable manner.

I, therefore, look forward to discussing matters further with you in the New Year.

In the meantime, please accept my best wishes for the festive season.

Best wishes,

Nicola Sturgeon

Scottish Governments formal opinion on the right to hold a second referendum:

The people of Scotland’s right to choose their future

Over the past 24 hours we've been subject to reports to twitter to have the ad video for this legal action taken down. It has succeeded twice. It is now being hosted on the ND youtube channel. 

Just an update on the current status of the fundraiser. As of 23/12/2019, we are:

We are raising £40,000 

We've raised £6,942 so far.

252 people have pledged to support the right of the people to vote on independence.

That's 17% to our target funded with 25 days left to go on the fundraiser.

The deadline to reach our target is (or else the case will not proceed)

Friday 17 January at 8 p.m. (3 weeks, 4 days from now)

We'd like to thank everyone who has backed this extremely important case on the constitutional question of Independence for Scotland, so far, and we appreciate you continuing to share the link to help us hit our goal.

https://www.crowdjustice.com/case/the-scottish-people-vs-the-uk 

As our fundraiser now hits 7% in 20 hours, we really need to push hard to get to our £40K target within the next 29 days.

This is an all or nothing prospect. Either we hit our target, or we don't and the one opportunity, we the people, have to send a clear message to Boris Johnson would be lost if we don't.

We told you there were three criteria that needed to be met for legal action to initiate:

1. A majority of Scottish MP's returned in the general election being Yes supporters.

2. The First Minister requesting a section 30 order.

3. That section 30 order request being rejected or ignored. 

As of today, the section 30 order has now been formally requested by the First Minister and based on the fact that Boris has stated publicly numerous times he WILL reject it, the third and final criteria is about to be met.

This means we are only weeks away from initiating this action against the UK Government and we need your support in spreading the word about this crowdfunder.

Make no mistake, this case is one which will redefine Scottish Constitutional Law. It will set a precedent. It could deliver the next referendum for us and it could ensure that never again will we have to seek permission to eat lunch from turkeys at Christmas.

Please share the crowdfunder far and wide. It's no longer a question of if this action will be necessary, it is now a question of when it will be necessary. The sooner we hit our funding target, the sooner our legal team get to work. 

https://www.crowdjustice.com/case/the-scottish-people-vs-the-uk/