Boris Johnson – Legal expert warns of barriers to indyref2 without Section 30
THERE is no “rabbit in the hat” solution for finding a way to secure independence without a Section 30 agreement, according to a law expert.
The plan to hold indyref2, which has been unveiled by Constitution Secretary Michael Russell, emphasises a referendum must be “beyond legal challenge to ensure legitimacy and acceptance at both home and abroad”.
Dr Nick McKerrell, senior law lecturer at Glasgow Caledonian University, said requesting a Section 30 order from the UK Government was the preference for the Scottish Government as it would secure recognition from other states.
He said: “In 2014, the rhetoric from both sides – both the Scottish Government and the coalition government of [David] Cameron – was this is a legal referendum.
“The problem, if you are organising a referendum without a Section 30, is the legality.
“There is a very practical reason for it – not just about being recognised internationally but also who organises the actual vote?
“Do you do it through councils, will councils co-operate with it because it is not legal? Will you do it in other forms – community centres or private halls, that you rent out? It becomes difficult.”
READ MORE: SNP unveils plan to hold indyref2 – even if Boris Johnson says no
McKerrell said organising a referendum by bringing a law through Parliament – as has been suggested in Russell’s plan – had been a more likely plan for the SNP as this would use legal structures as much as possible.
He said: “Although Mike Russell’s published Plan B is vague on the details, the only way the UK Government could challenge the legality of a referendum would be after the bill had gone through the Scottish Parliament.
“Then the UK Government could refer it to the Supreme Court to judge whether the power to hold an independence referendum was within the powers of Holyrood.”
But he added: “For the bill to get to that stage though it would have to pass all the stages of Holyrood and likely need the endorsement of the Scottish Government’s law officer, the Lord Advocate.
“That would be a big ask given the Scottish Government’s strategy so far has relied upon gaining a Section 30 order as a ‘legal’ route.”
He said other routes which had been put forward as Plan Bs – such as using a majority at the election as a mandate to declare independence without a vote or to hold a referendum immediately – were also problematic.
READ MORE: Section 30 court case will be inconclusive, public law expert says
“There is no rabbit in the hat or magic button to press to say now the international community are going to recognise us,” he said.