Donald Mackay looks at the legality of the independence referendum in the wake of serious debate between Westminster and Holyrood on the issue.


A lot has been talked by both unionists and nationalists as to the legality of the referendum process. So in my first article on Labour Hame, I decided to stick my oar in.

The first thing I would contend, as has been mentioned before, is that there is such a thing as a legal referendum at all. At present, the Westminster Parliament is sovereign. It can make any law its heart desires and that is so. The principle of the Scottish Sovereignty of the People set out in documents as ancient as the Declaration of Arbroath and as recent as the Claim of Right is entirely theoretical for British constitutional purposes.

For this reason Westminster is under no obligation at all to pass a law following a referendum result. All UK referendums are consultative. The legal obligation is nothing. The political obligation is intense, and realistically no government of any colour would be stupid enough to refuse the results of a referendum.

What is certainly true is that Holyrood has no legal power to hold a legally binding constitutional referendum as the constitution is a reserved matter under Schedule 5 of the Scotland Act. The way the Scotland Act is structured means that everything not expressly reserved is up for grabs, including, apparently, government policy on Antarctica (which I’m sure is entirely in the priorities of every SNP minister). So Salmond can hold a consultative referendum on independence, but then so could anyone on anything. There is no law stopping someone buying a copy of the electoral register (or going for the African option of an ink fingerpot), setting up a polling booth in every town in Scotland and holding an election on what type of shoes they should buy. Luckily, this kind of direct democracy is not regularly applied, and if it occurs would produce some terrifyingly disproportionate results (as was proved by the last person to give it a shot, Brian Souter).

So imagine for a moment, the Scottish Government has held this referendum and they’ve won. The next stop is the Supreme Court. Anyone with “sufficient interest” (that’s the legal requirement) for judicial review could raise an action against the referendum result, as an Act of the Scottish Parliament. In this context, sufficient interest could mean any citizen of Scotland.

This would be further complicated by the entry of the Advocate General, the Scottish law officer for the UK Government who is required to intervene on judicial review cases challenging the competence of the Scottish Parliament or the Scottish Government. Things become problematic thanks to the further rights of intervention by public interest bodies. In such an important case all of civic Scotland would turn up with their lawyers. All with a right to speak on every point raised. Two hundred lawyers in a room all with a lot to say is never a pretty sight and the poor little referendum bounces around a courtroom for the next decade or three.

However, at the crunch the result is likely to be the same. The Supreme Court is not above common sense. Often deference to a democratic mandate is sufficient to win them over. There was a case called Alconbury v Secretary of State for the Environment which if it had not been hastily reversed by the House of Lords would have prohibited a Government Minister from ever making another controversial decision, with all the obvious issues for the practice of government that would bring. Scotland would only have to call on the right to self determination under the UN charter and deference to democracy would do the rest.

So if the referendum has been manifestly and demonstrably fair, if the question was not biased, and the decision was in the right direction, then it passes. Westminster is politically forced to draw up an Act of Parliament that reads like a divorce paper and has just as friendly negotiations attached, and if not Scotland could potentially UDI.

The problem is that the SNP are not making it easy to win this legal battle. They need to accept the transfer of powers being offered by the Secretary of State. They need to let the Electoral Commission have proper freedom to run the referendum and have the final jurisdiction on the question as it is the only way it can be manifestly and demonstrably fair. They need to make the entire process whiter than white. If anything else happens, this is going to get messy.

Donald Mackay is a Law Student at the University of Glasgow and a member of Glasgow University Labour Club.