Matt Qvortrup: It may not be exactly legal, but it’s not explicitly illegal either

IN THE UK we don’t have constitutional courts like the United States, where we saw the various legal battles in 2000 between the Bush and Gore elections campaigns over the result of that year’s presidential election.

But it’s likely that the courts here would take the view that any legal challenge over the independence referendum was non-judiciable – something that was a political rather than a legal issue and, therefore, could not be ruled on.

The courts would be reluctant to hear legal challenges against the referendum and would probably strike any challenge out at the first base.

But if they were hypothetically to consider such a challenge, a key argument they would have to deal with is that the Scottish Parliament has a legitimate mandate to hold the referendum.

The court would have to take into consideration the SNP’s electoral mandate and the fact that its manifesto at the last election said that during the parliament there would be a referendum on independence. A judge would be able to say this was not a legal matter and was in fact a political matter. To take the example of an individual wanting to sue former prime minister Tony Blair over the Iraq war. The courts would say this is not a legal issue, but a political one.

A key argument apart from this is that the Scotland Act doesn’t precisely say there can’t be a referendum on independence. There’s ambiguity, because Donald Dewar said in the House of Commons that to do so would be ultra vires – beyond the powers of the act. But he then went on to say that if there was such a vote, politicians would have to sit up and take notice.

Another argument the Scottish Government could make is that it is accepted in Scottish law that there can be referendum, such as the recent one in Aberdeen, about the changes to the city centre. There was also a referendum in Edinburgh on the congestion charge.

A case of precedent was in 1985 when the civil service challenged Margaret Thatcher’s right to ban trade unions at the intelligence headquarters GCHQ. The courts said this was non-judiciable and was a political matter.

The point, of course, is that the courts really don’t like cases such as a possible challenge to the referendum and that’s why in this situation the UK government is probably wrong.

The UK government doesn’t have a strong case, as the legal authority for a referendum is not cast iron. At the same time, the problem the Scottish Government has is that a referendum is not explicitly legal either.

• Dr Matt Qvortrup is the author of A Comparative Study of Referendums.