HOUSE of Commons researchers have concluded that the row over a second independence referendum could end up in court – as it’s not clear whether or not MPs can block a second vote.

The parliamentary research briefing also states that the temporary powers which paved the way for the first independence vote are not the only legal option for the Scottish Government.

The First Minister said that it is “unsustainable” for the UK Government to stand in the way of the SNP’s mandate for a second independence vote, but added that the detailed research showed they are “busy working behind the scenes” to prepare for one.

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We previously told how the Referendum Bill will not be put before Holyrood ahead of the local elections on May 6. The First Minister will instead lay the legislation after the ballot, and has previously set the date for indyref2 for 2023.

The House of Commons briefing, which is 71 pages long, was written by David Torrance, a former political columnist who became a parliamentary researcher in 2018.

It outlines potential grounds for a legal challenge against Prime Minister Boris Johnson’s consistent refusal to agree to a second referendum.

In the foreword, Torrance said that the Edinburgh Agreement, which approved the temporary transfer of power, merely “paused rather than resolved disagreements over the Scottish parliament’s ability to legislate in this area”.

Referendum Bill 'could end up in court' House of Commons briefing saysThe PM has repeatedly said he does not back a second independence referendum

He said: “The Scottish Government maintained that a referendum of some sort was already within its devolved powers.

“Successive UK governments, on the other hand, maintained that it was reserved to Westminster.”

The debate over Holyrood’s competence to hold a referendum has been raging since devolution, the report added, stating: “By 2020-21 the Scottish Government was indicating that the question might have to be referred to the Supreme Court”.

Torrance set out that if the issue did go to court, then Supreme Court Justices would scrutinise the Scotland Act, but also the wider political context and debates around the issue.

He said: “Although the UK and Scottish governments agree that the Scottish parliament cannot unilaterally end the Union (ie enable Scottish independence), they differ as to the ‘purpose’ and ‘effect’ of referendum legislation ... Constitutional academics are also divided.

“This disagreement is not only legal, but political and historical.”

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There are three ways the bill could make it to court according to the briefing: through Scottish or UK law officers when the bill is laid before the Scottish Parliament, through a statutory reference or appeal of a “devolution issue” through the Scotland Act, or through the normal judicial process, starting off as an appeal in the lower courts.

On which side is most likely to refer the case, Torrance wrote: “The UK Government has not said whether it would refer the Scottish Government’s intended [Referendum] bill to the Supreme Court, but statements from Scottish ministers suggest they anticipate a challenge to be made by the Advocate General for Scotland under the first route.

“If not, the Lord Advocate could also refer the bill on grounds of clarification.”

Referendum Bill 'could end up in court' House of Commons briefing saysThe FM's spokesman said the mandate for indyref2 was clear

A spokesperson for the First Minister: “People have already decided there should be an independence referendum, when the SNP was re-elected last May with the highest share of the vote of any party in the history of devolution.

“That election saw a record majority of pro-independence MSPs elected – a greater majority than the 2011 result which was the agreed mandate for the 2014 referendum.

“For any UK Government to try and block the will of the people by standing in the way of that cast-iron democratic mandate is simply unsustainable – something which this House of Commons briefing appears to acknowledge.

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“The UK Government also knows this, which is why they are so busy preparing behind the scenes for a referendum they know is coming.”

A UK government spokesperson said: “People in Scotland rightly expect both of their governments to continue working together on the issues that matter to them.

"That includes working with international partners on the response to Russia’s invasion of Ukraine, as well as tackling the cost of living and levelling up across the UK.

“This is not the time for a distracting constitutional debate.”