nearly 700 years ago the battle for Scottish independence was a bloody affair at Bannockburn.

If statements from Westminster ministers like Scotland Secretary Michael Moore and the Advocate General Jim Wallace are anything to go by, the next battle on Scottish independence could be fought not by swords and battle-axes but by lawyers in the courts. The noble Baron Wallace of Tankerness confidently states that "to proceed with a referendum that is outside of its legal powers would be to act contrary to the rule of law".

Lord Wallace has a point. But he does not have a strong case.

Formally speaking, the Scottish Government is not entitled to hold a referendum as this is not one of the powers devolved to Holyrood under the S.30 of the Scotland Act 1998. To hold a referendum would be outside the powers of the Scottish Parliament. But there is a snag with this argument. It is unlikely that the courts – let alone the Supreme Court – would have anything to do with it.

True, in other countries, it is quite common for the Supreme Court to intervene and declare a law by a local parliament illegal or void. In America, for example, the US Supreme Court held in the famous case of Texas v White, way back in 1869, that the Lone Star State could not declare unilateral independence but that this had to go through a formal process. But the British Supreme Court is not a constitutional court like its American opposite number.

The British Supreme Court (previously the House of Lords), has shown a marked reluctance to get involved in issues dealing with matters pertaining to the possible illegality of Acts of the Scottish Parliament. In the case of AXA v The Lord Advocate (2011), the only case to have dealt with the limits of the powers of the Scottish Parliament to date, the Supreme court refused to declare an Act of the Scottish Parliament void. The court held that it respected "the judgment of [an] elected body as to what is in the public interest".

But if we – for a moment – entertain the thought that the Supreme Court did intervene, how would it rule?

We have few directly comparable cases, but it seems likely that the Law Lords would at the very least be inspired by the Canadian Supreme Court. In 1998, in a reference about the legality of a referendum for the French- speaking province of Quebec, the Canadian judges held that the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession".

True, negotiations would have to follow to define the terms under which Quebec would gain independence, and the referendum would have to be compatible with the principles of democracy, protection of minorities and the rule of law. Moreover there should be a clear question, but, provided that these conditions were met, a referendum could be legal.

Applying these principles to Scotland, would the referendum be acceptable? In all likelihood yes, but it would depend entirely on the organisation of the referendum.

Some have argued that the Scottish Government is trying to rig the question, and that the running of the referendum should be left to the Electoral Commission.

If the referendum is to live up to the criteria set out by the Canadian Court the referendum must be fair, and in order to be that it must be run in accordance with clear and transparent rules policed by a neutral umpire.

But this can be done in different ways, and there is no suggestion that one particular model is better than other ones. There is nothing in principle that disqualifies the Electoral Commission. But it is perhaps worth noting that in other independence referendums, the national electoral commission did not run the referendum. For example, in Eritrea, it was UNOVER (the ad hoc UN body set up to monitor the referendum).

But this example is unlikely to carry much weight. Perhaps more interesting is the model used in Quebec. Here a so-called "conseil du referendum" was established. It consisted of three judges of the Court of Québec. The conseil had exclusive jurisdiction to hear any judicial proceeding relating to a referendum, and its decisions were final. The fact that a similar model is used in Ireland suggests that such a body could be established here in Scotland.

Of course, such legalistic pondering is of little consequence to those who think politically about independence referendums.

History clearly shows that referendums on independence led to secession in the cases where there is public support for it.

Since the First World War there have been 76 referendums on independence. Most of these, 70 to be exact, have resulted in a yes vote.

But perhaps just as interestingly, only in two cases has the request for independence been successfully blocked by the parliament of the "mother country"; in 1946 a referendum in the Faroe Islands was ignored by the Danish Parliament and in 1933 the UK Parliament failed to take notice of a successful referendum on independence in Western Australia. But these two cases cannot be seen in isolation. In both cases, Unionist parties won subsequent elections and halted the process.

This, of course, does not mean that the larger state is happy with the secession. The Soviet Union was far from happy with the secession referendums in Estonia, Latvia and Lithuania – and Slobodan Miloševic was anything but thrilled by the referendums on independence in Bosnia, Croatia and other republics on independence from Yugoslavia. To claim that Scotland does not have a legal right to hold a referendum on independence is to use the very same argument as Mr Miloševic . And, it seems unlikely that any British politician would want to adopt a position that failed for a notorious dictator.

Generally speaking, independence is not an issue in which the "mother country" has a direct say. A country becomes independent when it is recognised by the international community. Admittedly, international law is not an exact science, nor a branch of law that lends itself to certainties and unequivocal statements, but based on the historical examples there is little that suggests that a referendum on Scottish independence will be – or could be – settled in courts. For, as the Canadian Supreme Court noted in Re Quebec, "The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations".

Matt Qvortrup is author of A Comparative Study of Referendums, Manchester University Press and is currently writing a book on Referendums and Independence