SCOTLAND’S 2014 independence referendum could be delayed by a legal challenge, a House of Lords report has warned.
In a sharply worded criticism of the “Edinburgh Agreement” signed by the SNP and UK governments, the Lords constitution committee claims that the referendum could be the subject of a judicial review, on the grounds it strays outside the remit of the Scottish Parliament.
Last month, David Cameron and Alex Salmond signed the “Edinburgh Agreement” which handed authority to the Scottish Parliament to draw up the referendum in a Holyrood bill.
The Prime Minister and the First Minister claimed that the terms of the agreement would ensure that a fair and legally secure referendum could take place in the autumn of 2014. However, after having studied the terms of the agreement, the Lords committee concludes that a “concerned citizen” could raise a legal action that could delay the entire referendum process.
Such a move would have potentially disastrous consequences for the deal, which will only extend powers to allow Holyrood to hold the referendum until the end of 2014, before they are revoked.
The Lords’ report is also highly critical of the fact that the referendum deal was done by the two governments behind closed doors, with little opportunity for either Westminster or Holyrood to debate the matter in advance.
It declares that, in a bid to ensure the referendum was “made in Scotland”, Westminster scrutiny of the proposal has been rendered “impossible”.
The threat of delay was brushed aside by the Scottish Government, claiming that the agreement signed with Westminster had put it beyond “effective” legal challenge. However, the UK government acknowledged it was impossible to completely rule out a challenge to any legislation.
The peers’ report, published earlier today, scrutinises the decision by London and Edinburgh last month to give Holyrood the power to stage the referendum through a “Section 30 Order” – a move which allows powers to be transferred to Holyrood.
The move was approved by ministers at Westminster to ensure that the referendum was passed by the Scottish Parliament, rather than by MPs at Westminster, which was a key demand from the SNP Government. However, that decision not to secure the referendum in primary UK legislation has left a question mark over its legality, the Lords report claims.
“There can be no guarantee that this manner of proceeding precludes litigation,” it says.
Such an order – known as “delegated legislation” – is, the committee declares, “in principle, judicially reviewable”.
Describing the deal signed by Mr Salmond and Mr Cameron as “skeletal” in nature, the report states that “serious questions” remain over how the referendum will be run.
These include the difficulties over giving 16 and 17-year-olds a vote, as pledged by the SNP. The report warns there may be “data protection implications” for putting them on the electoral register.
The committee chairman, Baroness Jay of Paddington, said: “We are concerned that there are still many potential pitfalls ahead.
“Proceeding via a ministerial order makes the opportunity to the UK parliament to contribute to the process almost negligible. And neither the UK nor the Scottish parliaments had the opportunity to contribute directly to the private negotiations on the agreement.
“We are also concerned about allowing younger people to vote, potential legal challenges to the order and the fact that the rules on financing the referendum have not been agreed. In order for this referendum to be timely, robust and secure, further work is necessary to ensure that these issues are resolved.”
The report also raises the issue of unanswered questions on the exact nature of independence and campaign finance issues, which are due to be settled by MSPs over the coming months.
The warning comes with the Scottish Government’s referendum plans set to be debated by MSPs in Committee today, with a Holyrood bill expected early next year.
The warning over the legality of the referendum was knocked back by SNP ministers and constitutional lawyers last night, who argue that the agreement between the two governments has made it legally watertight.
At a glance: Lords’ warning
• A successful legal challenge against the referendum is unlikely to succeed, but the “Edinburgh Agreement” does not “preclude litigation”.
• Such a legal challenge could cause “delay and disruption” and bring the courts into the “heart of the process”.
• There remain serious difficulties in ensuring all 16 and 17-year-olds get the vote.
• Neither Westminster nor Holyrood parliaments have had a chance to debate the proposals in advance which remain “skeletal” in detail. Scrutiny of the referendum at Westminster is likely to be “impossible”.
• The advice of the Electoral Commission should be followed. The Lords say they are “concerned” it could be ignored.