As Prime Minister Boris Johnson won an 80-seat majority in December’s general election, the SNP enjoyed their own success in Scotland. First Minister Nicola Sturgeon argues that she now has a mandate to push for a second independence referendum. But Mr Johnson denied this request – provoking Scottish nationalists to seek a transfer of powers from Westminster to enable the SNP to call a new vote on independence. After the election, Ms Sturgeon formally requested powers from Westminster to hold a second independence referendum – but the notion was firmly rejected by the Prime Minister. Without legislation passing through Westminster, another option for the SNP was a section 30 order – which allows Holyrood to pass laws in areas that are normally reserved to Westminster.
It was the order used to secure a vote in 2014, and is the route Ms Sturgeon has opted for once more.
The case is before the Court of Session at the moment where independence supporters are trying to establish whether Holyrood can legislate for a referendum unilaterally.
They are crowdfunding for the costs and raised tens of thousands, leading Professor Ailenn McHarg to warn the case will go ahead.
The expert in Public Law told Express.co.uk that this will “inevitably” as the UK government hopes to thwart the SNP’s independence charge.
She said: “I think a legal challenge is inevitable, and even if the UK government decided not to challenge it, once a bill became an act anyone could challenge it.
“Someone will take it to court – if the current case doesn’t succeed in the sense that they say ‘we aren’t willing to make a decision on this until there is a bill’, which is a likely possibility, either the UK government could challenge it pre-enactment or anybody else with an interest could challenge it.”
Prof McHarg also highlights that there are disputes over the legal case for holding a referendum without Westminster approval.
She added: “Holyrood cannot enact legislation that relates to a reserved matter, such as the Union.
“The question then becomes ‘does a referendum on Scottish independence relate to the reserve matter of the Union?’
“You might think ‘yes obviously it does’, but in law ‘relate to’ means it must have some concrete implication for the Union.
“There are different views on this, so that’s the issue.”
Prof McHarg published a paper in January outlining the various routes Scotland could take to independence.
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Writing for the UK Constitutional Law Association, she said trying to hold a referendum without the UK Government’s cooperation would be a “non-starter”.
The paper, written alongside Dr Christopher McCorkindale, said: “Unpalatable as it may be to some nationalists that the exercise of Scottish self-determination depends on Westminster’s cooperation, it is hard to avoid the conclusion that this is necessary.”
While the First Minister argued she could try to earn international recognition for the need of a second referendum, the experts said this option wasn’t possible.
Instead, they stressed the need for the Scottish and UK Governments agreeing on a referendum process – something that ultimately comes down to politics.
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They wrote: “If a second independence referendum is to take place and be effective as a means of achieving independence it is therefore crucial that it be conducted on a proper legal footing – that is, that the rules it sets out providing for the organisation of a poll and regulating the conduct of the referendum campaign are legally valid and hence binding on those to whom they apply.
“Attempting to proceed with a referendum without such a legislative underpinning would be a non-starter, given that it would depend upon the operation of Scotland’s 32 local authorities in organising the vote (none of which is under majority SNP control), and would almost certainly be boycotted by unionists.
“Any attempt to legislate for a referendum [at Holyrood] without a further explicit transfer of power is certain to be challenged in the courts; could cause significant difficulties within the Scottish Government, possibly including resignation of the Scottish Law Officers; and might also provoke retaliatory legislation from Westminster to make clear that such legislation is not within Holyrood’s competence.
“Moreover, even if such a Bill were to survive, a unilateral approach to authorising a second referendum might again lead to a unionist boycott and could not be certain of cooperation from the UK Government in implementing a vote for independence.”