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Joanna Cherry: Whatever Boris says, there could be a legal route to IndyRef2

24 January 2020

4:47 PM

24 January 2020

4:47 PM

Anyone who tunes into Prime Minister’s Questions these days ought to be prepared to hear the issue of Scottish independence raised multiple times. Since winning seats in the snap election from the Tories, Labour and the Lib Dems, SNP MPs have been keen to say that the case for IndyRef2 has never been stronger However, Boris Johnson takes a different view. The Prime Minister has said he will not give permission for a second independence referendum – and has rejected Nicola Sturgeon’s request.

So, is IndyRef2 off the cards while Johnson resides in No. 10? I put this to Joanna Cherry – the SNP’s Justice and Home Affairs spokesperson – on the latest episode of The Spectator‘s Women with Balls podcast. Cherry – who worked on the successful Article 50 and prorogation legal challenges against the government – suggests that there could also be a legal route to a second independence referendum:

‘I think what we’ve learned from the constitutional litigation that has arisen from the Brexit situation is that in both the Article 50 case that I was involved in and the prorogation case is that the British constitution is a bit more complex than what some people understood it to be which was that Westminster can pretty much do what it likes.

There’s a strong argument which is supported by many lawyers in Scotland and my friend and colleague Aidan O’Neill who led the Article 50 case and the prorogation litigation has produced a detailed opinion arguing that it may well be within the competence of the Scottish parliament itself to hold an advisory referendum. So that’s the weight of legal opinion that it may well be within the competence of the Scottish parliament so that might be one way forward for the Scottish parliament to pass a bill to do that.

Of course it would then no doubt be challenged, its competence would be challenged in the UK Supreme Court and the Supreme Court would have to make a determination. But I just remind people that commentators were very negative about the chances of success in the Article 50 case and the prorogation case and they turned out to be wrong about that. So we shouldn’t ignore the possibility that a modern British constitution which is a constitution of a number of nations – not just one – might allow Scotland to have a victory on that front in litigation.’

The full podcast can be found here.

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