CLAIM: BBC's Good Morning Scotland presenter Andrew Black said: "The power to hold [indyref2] legally still lies with the UK Government."


Normally in our fact-checks we’d dig into the doorstep answer you can offer – but this isn’t really a case where the individual being fact-checked is arguing against independence itself.

Instead, the focus is on indyref2, with Good Morning Scotland presenter Andrew Black remarking that the power to hold that vote legally lies with the UK Government.

It came during a segment on the show about the deal struck between the SNP and Greens, and was highlighted on Twitter by MSM Monitor.

Black said: “They’re talking about holding a Scottish independence referendum within the next five years. Does that mean it’s any more likely, given that the power to hold one legally still lies with the UK Government and the UK Government is still saying ‘you’re not getting it’?”

Political correspondent Andrew Kerr replied: “Well, this is a really important part of the deal. That government majority now has led Nicola Sturgeon to say that it will make it, in her words, 'impossible' for Boris Johnson to veto a second referendum.

“Of course, at the Holyrood election in May, there were jibes the SNP had failed to win an overall majority. Of course, in our system, it's very hard to do that.

"They fell one seat short. And so the claim was that they couldn’t claim the moral authority for another independence referendum vote.

"So in a way this comes right back at the critics, I think the SNP would say, but I think the prevailing mood at Westminster is still ‘no, this is not the time’. I think the strategy almost still remains, an attempt to run down the clock on Nicola Sturgeon’s leadership."


That statement made by Black is one that even some within the Yes movement would agree with – to suggest that the legal power to hold indyref2 exclusively lies with Westminster is an opinion that’s perfectly fair to hold.

The issue, however, is that it is IS an opinion, and is being presented by the BBC as a fact.


The truth is, it's too difficult to definitively say where the legal power lies for a hypothetical indyref2 bill to a standard acceptable for what is meant to be an impartial broadcaster. Our columnist and legal expert Andrew Tickell has dug into this many times – stressing that the suggestion of indyref2 being outside of Holyrood’s competence has simply not been tested in the court.

The National:

When Lady Carmichael was concluding on the open legal question of whether Holyrood has such legal competence in the case of Martin Keatings v the Advocate General for Scotland, she gave no answer.

READ MORE: Andrew Tickell: No outcome was always the most likely decision in indyref2 case

She said: “I consider that it is unnecessary, and would be inappropriate, for me to express an opinion.”

Carmichael said that the crowdfunded action was “hypothetical, academic and premature, and the pursuer lacks standing to bring it”.

Analysing that, Tickell wrote: “So why was this case hypothetical and premature? Lady Carmichael’s judgment is 72 pages long, but here’s the heart of it. The action was trying to establish the principle that a referendum on independence held within Holyrood’s existing powers would be lawful. The problem? It was trying to persuade the court to express a hypothetical opinion on the hypothetical legislative competence of a hypothetical referendum bill.

“None of this should be surprising if you read earlier decisions in this case with care. In the summer of 2020, the Court of Session already gave a powerful steer that the case would end this way. Refusing their application for a protective costs order last July, Lady Poole pointed out to the pursuers that 'the court does not exist to determine questions in the abstract, including hypothetical questions about the competence of possible forms of future legislation' – and yet this is precisely what this legal action was attempting to convince the court to do.

“The judge concluded that 'consideration by a court of proposed legislation will normally be hypothetical and premature at any point before it is in its final form and has been passed by Parliament'. Is she wrong? After all, as she points out, it can be changed as MSPs work their way through it. Legislation which on the face of it was perfectly lawful when introduced can accrue amendments which might be legally problematic. Who can say until you have the final product to work with?

"The Scotland Act says the courts have the power to decide whether acts of the Scottish Parliament fall within or outwith Holyrood’s legislative competence. Judges are instructed to look at specific provisions of that legislation, to think about their 'purpose and effect', and if they 'relate to' a reserved matter.

"Think about it. How can a judge do this work before they have a concrete piece of legislation to consider? When you’ve got no final provisions to look at, how can you judge whether they specifically fall within Holyrood’s powers, or outside them?

"You can’t – and that’s why Lady Carmichael concluded that this court action was hypothetical and premature. She’s right. It is. If there are votes for a second independence referendum to be mustered in Edinburgh, then it’s for Holyrood to pass the legislation, and for the UK Government to make the case in court against it, taking the political hit for attempting to frustrate that democratic mandate and risking an adverse finding.”

The National: It was Donald Dewar who put forward the initial estimate of £35 million for the Scottish Parliament building

In fact, on May 12, 1998, Tory MP Michael Ancram asked future first minister Donald Dewar whether the Scottish Parliament would have available a referendum on the Union or not.

READ MORE: Scottish independence: Which parliament has the right to hold a referendum?

Dewar told the Commons only “it is clear that constitutional change – the political bones of the parliamentary system and any alteration to that system – is a reserved matter. That would obviously include any change or any preparations for change.”

It was very clearly registered as a non-answer by those in the room.

Dewar’s “charm, wit and verbal facility disguise that there has been no answer to a fundamental question,” Tam Dalyell quipped.

Lawyer Dominic Grieve pointed out that consultation does not mean constitutional change, necessarily.


The Scottish Government has made clear that it is willing to do battle in the courts with the UK Government over indyref2.

The success or otherwise of such an action is dependent on many factors including the specifics of the legislation set out.

Therefore, it was wrong for Good Morning Scotland to take it as read that the legal power to hold indyref2 lies exclusively with Westminster.

It would be a point valid to raise for discussion, if more careful language was used and more context given.

(And there's even debate about the Acts of Union ... but that's for another article!)


This was an opinion presented as fact – which the BBC claims not to be in the business of. The statement was false.