A COURT challenge to Nicola Sturgeon’s independence referendum bill would not be left to a private individual, senior UK government figures have indicated.

Boris Johnson’s cabinet is gearing up for a legal fight over the Holyrood legislation but has ruled out the possibility of a citizen campaigner emerging to stop a referendum.

There has been some confusion over whether the Conservative government would take the Scottish Government to court over a referendum bill, with Cabinet Office minister Michael Gove appearing to rule out the possibility. 

But then in a Zoom briefing with Scottish journalists after the election he refused to be drawn on the issue and referred to a legal debate over the matter, even name-checking The National's columnist Andrew Tickell, an expert in constitutional law.

The First Minister has condemned any such action by the UK Government and also suggested it could lead to a backlash among Scots voters.

Such a situation has prompted speculation that a legal challenge would then be left up to a private individual opposed to independence.

READ MORE: Michael Gove refuses to rule out UK legal action against SNP indyref2 bill

After the 2016 referendum, anti-Brexit activist Gina Miller launched two successful legal cases against the Conservative government over its plans to leave the EU.

Her first victory came in September 2017, when the Supreme Court ruled in favour of giving MPs a say over triggering Article 50 – the legal mechanism taking the UK out of the EU.

Her second came two years later, when the Supreme Court ruled that Boris Johnson's decision to suspend Parliament was unlawful.

Separate successful legal cases on the triggering of Article 50 were also fought by Alyn Smith, Joanna Cherry and Andy Wightman in the European courts, with Cherry also behind a Scottish court challenge to the prorogation of Parliament.

READ MORE: Michael Gove name-checks National columnist in legal debate about independence

The First Minister has made a manifesto commitment to hold a second independence referendum in the new parliamentary session and has said it should take place by the end of 2023 on the condition the pandemic is over. 

But if Johnson continues to refuse to transfer powers to the Scottish Parliament to hold an agreed vote, Sturgeon would press on with a vote using Holyrood legislation.

She has signalled she could introduce a referendum bill at Holyrood next spring.

But because the question of whether the Scottish Parliament can organise a referendum is disputed it could be challenged in the courts.

However, a challenge from an individual could only come after the bill has received Royal Assent, effectively passed into law.The National:

Anti-Brexit campaigner Gina Miller outside the Supreme Court in London in 2019

UK ministers expect legal officers from both the Scottish and UK governments would act before then.

A senior Whitehall source told today's Daily Record: “If it is done, it won’t be by ministers, it won’t be Michael Gove or Boris Johnson, it will be the legal officers of the Crown.”

The Scottish Government’s own senior law officer, the Lord Advocate, could rule the bill outside the competence of the Parliament which would kill the bill before it goes to Holyrood, where there is a pro-independence majority of MSPs.

Otherwise the UK Government’s Scottish law officer, the Advocate General for Scotland Lord Stewart of Dirleton QC, could attempt to strike the bill down in the courts.

The UK Government’s thinking emerged as both governments get into gear for a constitutional clash, with Angus Robertson appointed yesterday as Constitution Affairs Secretary to make progress on independence and Michael Gove tasked by Johnson with stopping it.

Later today, MPs on Westminster's Constitutional Affairs, Northern Ireland Affairs, Scottish Affairs and Welsh Affairs committees will investigate the Dunlop review on intergovernmental relations.

The Dunlop Review was commissioned in 2019 to consider whether existing UK Government structures to support the working of the Union were effective and whether reform was necessary.

Dunlop, a former Scotland Office Minister, found that the UK’s intergovernmental machinery was not fit for purpose and called for the establishment of a UK Intergovernmental Council. He will give evidence to MPs. Gove is also expected to give evidence to the committee.