Ian Smart: SNP’s waiting game on referendum law

I was one of those asked to advise her on the politics of this, but in that role I could not entirely ignore my other life as a working lawyer, and from the outset we were aware that it was by no means clear that such a step was within the legislative competence of the Scottish Parliament.

As devolutionists, for us this was never more than a matter of process, since the assumption was that, with Labour and SNP support, there would be a majority for legislation in either Westminster or Holyrood and that whichever Parliament required to legislate would have a willingness to do so.

Fatally for Alexander, however, it became increasingly apparent that the assumption that such a move would have Westminster support proved to be over-optimistic and, more fatally still – as the mere leader of the Labour party in the Scottish Parliament and never the leader of the Scottish Labour Party – she had no internal authority to force the issue. Since May 2011 the issue of whether the Scottish Parliament has the legal authority to hold an independence referendum has become much more significant.

It is said that Britain does not have a written constitution but it does have certain accepted constitutional principles. One of the most important of these is that ultimate constitutional authority flows from the Crown in Parliament. Any ‘legal’ body or person, be it a minister acting administratively, a devolved parliament, a local authority or indeed a private citizen in their everyday life, can only do what the Crown in Parliament permits he, she or it to do.

Now there is, or at least was, a separate Scottish constitutional theory that ultimate constitutional authority, in Scotland at least, lay with the people. Support, some believed, for the survival of this principle to the modern age might be found in remarks made by Lord President Cooper in the 1953 case of McCormick v The Lord Advocate, relating to whether our present Queen could, in Scotland, be properly designed Elizabeth the Second.

That theory must, however, have been finally laid to rest by the decisions of Scotland’s highest domestic court in the 2000 case of Whalley v Watson and the UK Supreme Court in AXA Insurance v The Lord Advocate earlier this year.

So the only possible authority of the Scottish Parliament to hold a referendum would be if the Westminster Parliament’s 1998 Scotland Act permitted them to do so. That legislation is structured in such a way as to allow the Scottish Parliament to legislate for whatever it wants unless it is specifically prevented from doing so by virtue of legislation in a given area being ‘reserved’ to the Westminster Parliament. Unfortunately for the Scottish Government, one of the matters so reserved is “the Union of the Kingdoms of Scotland and England”.

Even the most die-hard nationalist would agree that this would prevent the Scottish Parliament from legislating directly for the dissolution of that Union. To date, the SNP’s argument has been that the mere holding of a referendum to test public opinion on any subject, not being specifically ‘reserved’, must, by implication, be permitted. They have, however, declined to publish their own legal advice on this matter and regrettably for them the weight of contrary legal opinion is now becoming overwhelming.

To the voice of Aidan O’Neill QC, undoubtedly our foremost practising public lawyer, has now been added those of Adam Tomkins, Professor of Public Law at Glasgow University and Dr Cormac Mac Amhlaigh, an expert in constitutional law at Edinburgh University. The best that the First Minister’s spokesman can offer in return is that “our legal position [is] confirmed by a range of legal experts”. Who they might be is not mentioned.

This need not be the legal problem it first appears. The Scottish Government could ask the Westminster Parliament to give them the power to hold a referendum, or indeed they could adopt the Alexander solution and ask the Westminster Parliament to legislate directly for a referendum on the terms the Scottish Government proposes.

Somewhat strangely, they show no signs of doing either, proposing to put all their eggs in the one basket of legislation which, even they must concede, would, at the very minimum, be likely to be subject to legal challenge and the consequent delay that involves.

What is going on here? There is scant evidence the SNP could ever win an independence referendum. They are currently favoured with an immensely popular leader; a hugely unpopular Westminster government and economic policy; a principal opposition in complete disarray and, thanks to dead poets and lucky lottery winners, an immense potential campaign fund.

Yet, even then, their proposed enabling legislation is receding into the distance at a rate of knots. One can only conclude this is because, even with these advantages, the First Minister and the throng of bright young men and women around him know that they would face not only defeat but potential party schism in its aftermath.

Their own rank and file, however, will not give up on “freedom” so cynically and, somehow they have to be kept on board. Might it not then suit the First Minister to sail full steam ahead in the certain knowledge that he is heading into a legal minefield? And if he was still negotiating his way through it by May 2016? Well, that would hardly be his fault.

• Ian Smart is a lifelong member of the Labour party and a former president of the Law Society of Scotland