Scotland has no legal right to hold independence referendum, say MPs

Advocate General Lord Wallace: Holyrood had no power to deliver referendum. Picture: Robert Perry
Advocate General Lord Wallace: Holyrood had no power to deliver referendum. Picture: Robert Perry
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THE “overwhelming” weight of evidence shows Holyrood has no legal powers to hold an independence referendum, a report from the Commons Scottish affairs committee has warned.

Any moves by Holyrood to legislate for a referendum would risk “indefinite” legal wrangling with the prospect of plans to hold a vote on Scotland leaving the UK being struck down by the courts, the report claimed.

The report, published today, cites a raft of evidence from legal and constitutional experts, as well as a claim from Scotland’s Advocate General Lord Wallace, who said Holyrood had no power to deliver a referendum of any kind and to do so would flout a “fundamental principle of democracy”.

A key argument in the committee’s report centres around a claim Scots voted for a devolution settlement in 1997 that established the Scottish Parliament, but reserved all powers about the nation’s constitutional future to the UK parliament.

Other evidence highlighted in the report includes a written submission from one of Scotland’s leading lawyers, Aidan O’Neill QC, who said “neither the Scottish Parliament nor the Scottish ministers have the legal powers” to hold an independence referendum under the terms of the Scotland Act of 1998 that led to devolution.

There would also be a “very strong argument” that Holyrood would not be able to legislate for a referendum by using the powers of the act, according to evidence from Professor Adam Tomkins, of the school of law at the University of Glasgow.

The SNP government has insisted Holyrood is legally competent to hold the independence referendum on its preferred date of autumn 2014.

However, the committee report claimed it could “find no evidence for this” and talked about how any referendum would have to have an “unchallengeable legal and moral basis” rather than just been an “advisory” vote.

The Labour-dominated committee suggested a referendum bill from Holyrood could be clogged up in the courts for years, unless a deal is reached which allows Westminster to transfer the powers to hold the vote to Holyrood, subject to the agreement of all Scotland’s MPs.

It says it is “highly desirable” both the Scottish and UK governments and both parliaments should agree on the process so the independence referendum can be held within an “appropriate timescale”.

Committee chairman Ian Davidson, a Labour MP, said the independence referendum should be held “legally, speedily and honestly” as he called for the vote to be brought forward.

He said: “It is clear from our evidence the Scottish Parliament has no powers to hold either a binding or an advisory referendum on constitutional change. It is also clear any attempt to do so would result in legal disputes and delay.”

A spokesman for Scottish Government strategy minister Bruce Crawford said: “The real issue is the terms and timing of the referendum must be decided in Scotland, by the Scottish Parliament, not dictated by Westminster, and includes a possible ‘more powers’ option.”