Scotgov may have to take fight for indyref2 to Supreme Court, says legal expert

Nathanael Williams

Scottish Government faces legal hurdles as Holyrood is confirmed as limited body for a limited nation

A SECOND independence referendum may have to be fought for at the level of the UK Supreme Court, according to a leading legal expert on devolution.

Dr Nick McKerrell, a law lecturer at Caledonian University and a reasearcher on constitutional legal theory made the statement following yesterday’s (24 January) UK Supreme Court ruling, that found that Holyrood could have no legal say in the triggering of Article 50. 

McKerrell said that although the decision may have made an another referendum on Scottish independence more likely, there would still need to be legal agreement to hold one, as there was for the first referendum, held in 2014.

A threat to a new referendum could also come from civil groups based in Scotland, who could challenge it through the court system up to the Supreme Court level, he told CommonSpace.

“So it would not strictly be the UK government challenging the law but groups within Scotland.” Dr Nick McKerrell

He said: “Even if the Scottish Parliament accepted the [referendum] Bill and passed it, any Scottish citizen or campaigning group could challenge the law in court – this could go all the way to the Supreme Court of the UK.

“This happened last year with the challenge to the named persons legislation.  So it would not strictly be the UK Government challenging the law but groups within Scotland.”

McKerrell outlined what he claimed was the simplest legal path for a referendum; an agreement between the Scottish Government and the UK Government. However, he said that since the Scottish Government had in 2012 followed the process of the Edinburgh Agreement, it accepted the idea of the need for legal permission.

McKerrell said: “If Nicola Sturgeon chose to ignore this, or Theresa May point blank refused to discuss it ,which seems the position at the moment, the road would be fraught with legal difficulties.”

Scottish First Minister Nicola Sturgeon confirmed after the ruling that her government would look to consult Holyrood in a legislative consent motion, regardless of whether the UK Government took note.

“If Theresa May point blank refused to discuss it (which seems the position at the moment) the road would be fraught with legal difficulties.” Dr Nick McKerrell

McKerrell suggested two other potential hurdles to a second referendum. The first possible scenario would involve the presiding officer in Holyrood, Ken Macintosh, refusing to accept the Referendum Bill. He could, in theory, give a reason that the bill deals with “matters outwith the competence of the Scottish Parliament”. 

Secondly, the SNP could be frustrated by the UK Government refusing to send a passed Holyrood independence bill for royal assent. By refusing to send the bill to the Queen, the legislation would be deprived of official recognition.

This would give the Scottish Government a significant degree of political capital, as it could accuse the UK Government of undemocratic action.

Devolution pronounced “dead” as Sturgeon goes for Brexit motion in Holyrood

In the event of these possibilities, the Scottish Government could opt for an “illegal referendum” such as the one promoted by pro-independence parties in Catalonia, despite the negative reception of the Spanish government.

The Scottish Government, when contacted for comment on legal obstacles to a second independence referendum, would not comment on what course of action it would take in the instance of a block by the UK Government.

The decision of the Supreme Court, that devolved administrations do not have a legal right to input over Brexit, has thrown the UK’s various devolution settlements into chaos.

Sturgeon has re-iterated that a second independence referendum is “highly likely” in the wake of the UK’s vote for Brexit and Prime Minister Theresa May’s outlining of plans for hard Brexit, including a divorce from all EU institutions.

Picture courtesy of First Minister of Scotland

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