Scottish Government could hold indyref2 WITHOUT Johnson's permission

In a 13-page legal opinion produced for the pro-indy Forward As One group, Aidan O’Neill QC has said there are “good arguments to the effect that the Scottish Parliament have the power, under the provisions of the Scotland Act 1998 as they currently stand, to legislate for the holding of a referendum on Scottish independence".

However, he warned that any referendum not sanctioned by Westminster would almost certainly be challenged in the courts.

Neil’s opinion was secured after the independence campaigners raised more than £40,000 in an online fundraiser.

The argument, O’Neil says, comes down to whether a referendum on Scottish independence is reserved to Westminster and is "outside the legislative competence" of Holyrood.

While the Scotland Act lists the “Union of the Kingdoms of Scotland and England" as a reserved issue, because a Scottish independence referendum would “have no automaticity” and would not be “the firing of a gun leading inexorably to a dissolution of the Union“ it could be argued that it would not be beyond the Scottish parliament's competence.

He writes: “As with the case of Brexit, any attempt to dissolve - or radically re-define the terms of - ‘the Union of the Kingdoms of Scotland and England’ would necessarily involve complex and lengthy negotiations.”

Keen says that the question of Holyrood’s competence to legislate is a question of law, not a political question and “can only ultimately authoritatively be answered by the courts.”

He writes: “The fact that the UK Government has made it clear that its firm policy is that it is opposed to a further Scottish independence referendum is neither here nor there. That is a political position.

“The court is being asked only to determine a legal question. Constitutionally what the court is being asked to decide is whether, in terms of the 1998 Act as it currently stands, a further independence referendum for Scotland is a matter on which the Scottish Parliament is competent to pass legislation.”

The QC adds: “There are good arguments to the effect that legislation from the Scottish Parliament providing for a further referendum on Scottish independence does not, for the purposes of Section 29(2)(b) SA, ‘relate to’ the Union of the Kingdoms of Scotland and England.”

A spokesman for the First Minister declined to say whether the Scottish Government had commissioned legal advice into whether Holyrood could hold an independence referendum without consent from Westminster.

He said: "It is a matter of long standing convention that we don't discuss legal advice not just on this issue but more widely. Legal advice to ministers is something that is always done in confidence and is not discussed."

He added: "First and foremost this is an issue of democracy...respecting democracy, respecting people's votes in elections...We are not in the business of ruling things out."

He went on to say that in the Scottish Government's view the UK Government was acting undemocratically.

"We are not ruling things out but we first and fore mostly consider this an issue of democracy and people being able to have their say, that is how these things should be resolved," he added.

Earlier this week, the Constitutional Relations Secretary Michael Russell refused to rule out taking legal action, saying SNP ministers had "many options".

Speaking on BBC Radio Scotland's Good Morning Scotland programme, Russell said: "I think you can either have democracy or you can have dictatorship, you can't have both.

"If Boris Johnson wants to be a dictator that simply says 'other people's votes don't matter, Scotland's doesn't matter, Scotland isn't a nation', that is a decision which cannot hold in my view, because it goes so much against the views of the people of Scotland.

"Even those who are not in favour of independence, we know are in favour of saying it is right that if the people of Scotland vote for something they get their chance to choose. That is all this is about."

His comments followed a paper by Strathclyde University senior public law lecturer Chris McCorkindale, and Durham University public law professor Aileen McHarg warning that it would be “extremely unlikely" a legal challenge could force the government into devolving the powers to allow a legally watertight referendum.

Forward As One convener, Martin James Keatings, tweeted: "I understand that a legal action initiated by activists is unusual but it can be summarised as such: If you always do what you've always done, you'll always get what you always got.

"'It'll never work' is NOT an excuse for never trying. Because ultimately if you don't do it because there is a perception it might not work, it certainly won't work because you didn't pursue it."

"It'll never work" is NOT an excuse for never trying. Because ultimately if you don't do it because there is a perception it might not work, it certainly won't work because you didn't pursue it.

— Martin James Keatings #FSI (@MartinJKeatings) January 15, 2020