Advocate General Lord Wallace said earlier this week the Scottish Parliament has no power to deliver a referendum of any kind. Picture: Phil Wilkinson
By David Maddox - THE UK government’s most senior Scottish law officer has said any referendum organised by Alex Salmond without a temporary transfer of powers to Holyrood would be undemocratic and illegal.
In a strongly worded attack, Advocate General Lord Wallace gave his strongest hint yet that he would go to the Supreme Court in London to try to stop an SNP- organised poll if the Nationalists did not accept an offer to hand Holyrood the necessary powers to hold the vote.
In his first intervention on the referendum, the former Liberal Democrat deputy first minister warned Mr Salmond not to use the need for a handover of powers as “a negotiating ploy”.
Lord Wallace said the Scottish Parliament had no power to deliver a referendum of any kind – even advisory – and that to do so would flout a “fundamental principal of democracy”.
The attack came as a new YouGov poll suggested support for independence was growing, with 39 per cent backing it. But the majority questioned believed Scotland should have complete control over its finances, while defence and foreign policy remained at Westminster, in an arrangement often described as devo max. Mr Salmond wants a second question on devo max in the referendum.
But as debate continued to rage over the process rather than the issues surrounding the referendum, a defiant Mr Salmond insisted he did not need powers handed to him from Westminster to hold the poll.
He also ramped up pressure for a summit with Prime Minister David Cameron, who has agreed in principle to meet the First Minister, but continued to refuse a meeting with Lib Dem Scottish Secretary Michael Moore until after the Scottish Government has launched its own consultation.
The talks are meant to be part of the UK government’s consultation on the use of a section 30 order from the 1998 Scotland Act, which would allow a temporary allocation of powers to Holyrood to hold a referendum, which Mr Salmond wants to take place in autumn 2014.
In a statement issued prior to a lecture on Scotland’s constitutional future to be delivered at Glasgow University on Friday, Lord Wallace said Mr Salmond should meet Mr Moore this week because it could make no difference to his referendum.
He said: “It would make a great deal of sense for the First Minister and the Scottish Secretary to meet so that they can start clearing the path to a legal, fair and decisive referendum for the Scottish people.
“There is no reason to delay these talks while we await the Scottish Government’s own consultation paper, because there is nothing that could conceivably be in that document that will alter the legal position we face.”
What appeared to rile Lord Wallace the most was the SNP government’s manoeuvres on whether it needed powers from Westminster, as negotiations begin over the date of the vote, the number of questions, whether the franchise should include 16- and 17-year-olds and whether the Electoral Commission should referee the poll.
He said Attorney General Dominic Grieve would have a legal duty to consider a challenge to Scottish legislation if it was outside Scottish Parliament powers.
And while he fell short of saying he would take the matter to the Supreme Court, his stark language was seen as a clear signal that he would. He also warned that a third party almost certainly would make the challenge.
He said: “The UK government’s legal view is that the Scottish Parliament has no power to deliver a referendum on independence. It does not matter whether such a referendum is described as advisory, consultative or providing a basis for negotiations. The Scottish Parliament has no power to legislate for a referendum on independence.”
He went on: “To proceed with a referendum that is outside of its legal powers would be to act contrary to the rule of law. This is not a mere legal technicality, as some commentators have suggested. Government according to law is a fundamental principle of democracy. To flout this principle would be a very worrying step for a democratically elected government to take.”
He also accused Mr Salmond of misrepresenting the section 30 order as a permanent transfer of powers over referendums to Scotland.
He said: “The Scottish Government don’t appear to fully understand the effect of a section 30 order. It would not make the referendum legally binding. It would make the referendum legal and remove the likelihood that the referendum will be blocked by the courts.”
He said the UK government acknowledged the mandate achieved by the SNP at last May’s election. “It is precisely because of this political mandate that the UK government is offering means to ensure the Scottish Parliament has the power to deliver a referendum that is fair, legal and decisive,” Lord Wallace said
The Scottish Government remained adamant it could hold an advisory referendum but insisted it was happy to talk.
A spokesman for Mr Salmond said: “While the UK government has its view, the Scottish Government are entirely confident about our legal basis to hold a consultative referendum – as confirmed by a range of experts. In any event, we have absolutely no objection to a section 30 enhancement of Holyrood’s powers to hold a legally binding referendum, but what we cannot possibly accept is Westminster dictating the terms of Scotland’s referendum.”
He said the First Minister was looking forward to meeting Mr Moore, inviting him to Bute House on Thursday or Friday next week, as well as meetings with Mr Cameron and Deputy Prime Minister Nick Clegg.
However, he accused UK government ministers of trying to dictate the terms of the referendum, which they insisted needed to be made in Scotland.
The spokesman said: “It is the UK government which has been trying to dictate the terms of the referendum and restrict choice.”
He insisted the push for a second question on devo max was still alive, despite the UK government making it clear that a “fair and decisive referendum” needed to be one straightforward in-or-out question.
The spokesman went on: “In recent days, we have had strong voices from civic Scotland calling for the option of more powers for the Scottish Parliament to be discussed and considered in relation to the referendum – from the voluntary sector, the STUC, the Church of Scotland, and a powerful intervention by Canon Kenyon Wright.
“As Canon Wright has said, the issue is the ‘sovereign right’ of the people of Scotland to determine the form of government best suited to their needs – as expressed in the Claim of Right – which is why devo max needs to be part of the debate.”
Meanwhile, Scottish Labour leader Johann Lamont backed calls for an early referendum, with one Yes-No question. She said: “I think there is growing support for that, but this is exactly why we need cross-party talks in Scotland to reach a national consensus on the process.
“It is vital that businesses, trade unions and civic Scotland are involved in those discussions. Alex Salmond alone does not speak for all of Scotland on these issues.”