Jim Wallace: The rule of law on referendums isn’t an optional extra

THE Scotsman’s editorial yesterday repeated a number of misconceptions which have crept into the debate around the referendum.

No-one is attempting to stand in the way of the Scottish Government holding a referendum.

The UK Government respects the result of the 2011 election and recognises the SNP has a mandate to fulfil its manifesto commitment, which was for a referendum on independence.

But that victory does not override the rule of law, which is a principle of democracy, not an optional extra.

We must respect the Scotland Act 1998. It gives the Scottish Parliament its legitimacy and sets the boundaries of its powers – and proceeded on the “authority of the people” expressed in the 1997 referendum.

A referendum cannot happen unless it is legal. There are no hairs to be split on whether a vote would be merely “advisory” or “consultative”.

And it’s not just the view of the UK government that, without a Section 30 order, the Scottish Government will not be able to hold a poll – a wide range of legal experts also share that view.

The Section 30 order provides an ideal way to put the issue beyond doubt. Without it, any proposed referendum would be open to challenge in the courts by members of the public. I have said on numerous occasions that we should make every effort to avoid ending up in court.

The UK Government wants Scotland to continue to prosper within the UK. We are not using the law to put “spurious legal impediments” in the way of the referendum. We are using the law to try and deliver it for the Scottish Government, and the sooner the First Minister agrees to talks with the Secretary of State, the sooner the issue can be resolved.

Previous Scottish Government documents show that it is fully aware of the legal standing of its referendum. One is entitled to wonder why it has not moved more quickly to take advantage of our solution.

It is a simple issue which needs to be agreed between both parliaments, both of which have a role to play.

• Lord Wallace of Tankerness, QC, is Advocate General for Scotland.