RBs letter in The Herald, 27 January 2012-01-27 1.

As published Legal challenge to referendum would be condemned to failure You report that, while Westminster insists the Scottish Government does not have the legal authority to hold a referendum, Alex Salmond said his government had "set out in the past how the Scottish Parliament could hold a referendum which w e are satisfied would be within its present competence" ("Poll boost as Salmond starts on historic path", The Herald, January 26). The First Minister added: "In order to ensure that the referendum is effectively beyond legal challenge, we are willing to work with the UK Government." Cooperation between the Scottish and UK governments on this matter is, of course , to be welcomed. But the all-too-prevalent view that the Scottish Government is on shaky legal ground in claiming that it already has the power lawfully to hol d an independence referendum needs to be vigorously countered. No-one disputes t hat the Scottish Government, notwithstanding the restrictions on that government s devolved competence contained in the Scotland Act 1998, can lawfully make pro posals to, or hold conversations or enter into negotiations with, the United Kin gdom Government about (i) widening the devolved powers of the Scottish Governmen t and Parliament (including amending or removing some or all of the matters rese rved to the United Kingdom which are set out in Schedule 5 of the Act) or (ii) a ltering the constitutional position of Scotland. That being so, no court could conceivably hold that it was beyond the legal powe r of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether they would favour t he Scottish Government s making such proposals to, or holding such conversations or entering into such negotiations with, the Government of the United Kingdom. There is always, of course, the possibility that such legislation might be chall enged as being beyond the Parliament s powers in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to failu re. 2. As submitted The report Alex Salmond sets out vision for independence referendum published on y our website on 25 January contains the following: While Westminster insists the Scottish Government does not have the legal authori ty to hold a referendum, Mr Salmond said his Government had "set out in the past how the Scottish Parliament could hold a referendum which we are satisfied woul d be within its present competence". He added: "In order to ensure that the referendum is effectively beyond legal cha llenge, we are willing to work with the UK Government." Cooperation between the Scottish and UK governments on this matter is, of course , to be welcomed. But the all-too prevalent view that the Scottish Government i s on shaky legal ground in claiming that it already has the power lawfully to ho ld an independence referendum needs to be vigorously countered. The Scottish Go vernments legal position on this matter is a strong one. No-one disputes that the Scottish Government, notwithstanding the restrictions o n that governments devolved competence contained in the Scotland Act 1998, can la wfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) widening the devolved powers of the Sco ttish Government and Parliament (including amending or removing some or all of t he matters reserved to the United Kingdom which are set out in Schedule 5 of the Act) or (ii) altering the constitutional position of Scotland. That being so, no court could conceivably hold that it was beyond the legal powe r of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether they would favour t he Scottish Governments making such proposals to, or holding such conversations o r entering into such negotiations with, the Government of the United Kingdom.

There is always, of course, the possibility that such legislation might be chall enged, as being beyond the parliaments powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to fail ure.