Going down the legal route only ups the ante in the indyref2 gamble

There was a time, not so along ago, when convention dictated that the courts and political institutions kept themselves to themselves. But that’s been changing. The UK Supreme Court stepped in to effectively overturn Boris Johnson’s decision to prorogue the Westminster Parliament last year, ruling this unlawful. And Nicola Sturgeon has now raised the spectre of going down the legal route to settle the issue of a future Scottish independence referendum.

It is widely acknowledged that control over the constitution is reserved to Westminster, but would this prevent Holyrood from staging a legally sound vote on the matter?

Constitutional experts are split. Some believe there is no leeway for Holyrood to

stage a referendum on such an issue. Others say that the issue is unclear and only the courts can deliver clarity.

The Scotland Act, which brought about devolution 20 years ago makes no mention of referendums. Following the principle that any issue not clearly reserved is, by default, devolved it could be argued this falls into Holyrood’s realm. Particularly given that the legislation, at roughly the same time, which brought about the devolved assemblies in Wales and Northern Ireland did make it clear that the authority of Stormont and Cardiff to hold such votes was restricted.

If a court took the view that any referendum was only a test of public opinion which did not materially or legally affect the Union itself - and did not therefore breach the terms of the Scotland Act Ms Sturgeon may have a case.

What is not disputed is that whatever the outcome of any Holyrood-sanctioned referendum, the Scottish Parliament does not have the power to implement the country’s secession from the UK.

This is indisputably reserved and would require co-operation from Westminster. It may then seem a futile exercise to stage a referendum under such a scenario. But it’s worth remembering that all referendums are only advisory, not legally binding. This was the case with Brexit and even with the 2014 independence vote. The Edinburgh Agreement signed by David Cameron and Alex Salmond was only a political accord. Legally, had Scots voted for independence, Westminster retained the legal authority to disregard the outcome.

So what happens next? If Nicola Sturgeon feels there is little prospect of making progress with an intransigent Tory government on the prospect of a transfer of power for a second referendum, then the legal route is firmly on the agenda. This is likely to involve Scotland’s Lord Advocate referring the matter to the UK Supreme Court for a judgment on whether the Scotland Act allows the Scottish Parliament to stage such a consultative vote. The big risk is that defeat would effectively re-aasert Boris Johnson’s absolute control on the issue. The stakes could not be higher.