With Scottish Secretary Michael Moore due to meet Alex Salmond on Monday, the intervention by the academics – four professors and three lecturers – is significant as it challenges the UK view that Holyrood does not have the legal authority to call a referendum.
They claim it is simply wrong to argue only Westminster is in charge of constitutional issues, arguing instead the law is not nearly as clear-cut as the UK Government says. They say the argument Holyrood holds power through separate Scottish traditions of popular sovereignty can equally be made.
But in a contribution to the UK Constitutional Law Group, the experts say allowing Westminster to grant the referendum power should not be an acknowledgment of sovereignty.
“It is important any such agreement should be not taken as an unequivocal endorsement of the view Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK,” they say.
The constitutional experts are Gavin Anderson, Sarah Craig, Aileen Mcharg and Professor Tom Mullen from Glasgow University, and Professor Christine Bell, Professor Stephen Tierney and Professor Neil Walker from Edinburgh.
“Contrary to the views of the UK Government and a number of influential commentators, we believe the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged.
“In other words, we believe a plausible case can be made that such a Bill would be lawful, and believe it is important these arguments are clearly set out.”
The Secretary for Government Strategy, Bruce Crawford, said: “This is welcome backing from some of the most eminent constitutional experts in Scotland for the position the Scottish Parliament is indeed able to hold a consultative referendum on independence under our existing powers.”
The experts say recent arguments advanced by the Advocate General, Lord Wallace, rest on a literal interpretation of the Scotland Act’s bar on Holyrood doing anything which “relates to” a reserved matter, and the broad purpose of a referendum Bill would be to dissolve the Union.
“Both premises of this argument are contestable,” say the experts, who point to the relevant section of the Scotland Act which tells courts they should interpret Holyrood Bills “as narrowly as required to allow them to be upheld”. They accuse the UK Government of conflating the intention of the Scottish Government with the intention of the Scottish Parliament.
The also argue: “The legal effect of a referendum Bill is indisputably simply to seek the views of people in Scotland,” adding: “If this is the correct approach to the identification of the Bill’s purpose, then the precise wording of the referendum question would appear to be a red herring; the legal effect of the referendum is not altered by asking an indirect rather than a direct question about whether Scotland should become independent.”
Mr Moore said this week: “Good progress has already been made over the past few weeks on how we can achieve a legal, fair and decisive referendum. We have already come too far to revert to a referendum that could land us all in the courts.”