A REFERENDUM next October could simply ask Scots if they would like the Scottish Government to start negotiations on independence with ministers in London.

According to reports this morning, that could avoid a court challenge on the legality of the vote.

Earlier this week, Nicola Sturgeon published a “scene-setter” promising that it would be the first in a series of papers outlining the case for independence. 

She has promised that later this month she will give MSPs a “significant update” on the process for obtaining that vote. 

Boris Johnson has made clear that he will not agree to a Section 30 order transferring the powers necessary to hold a legally watertight referendum. 

Without that, there is a legal question over whether or not the Scottish Parliament has the legislative competence to hold a vote.

Under the Scotland Act 1998, the union is reserved to Westminster, however, constitutional matters and referenda are not. 

Given the legal complexities, the government may find it tricky to get any legislation tabled in Holyrood past the Lord Advocate, who needs to give her own opinion on whether or not a referendum bill is competent. 

And, if it does get past her, it will then have to be assessed by the Presiding Officer who will seek her own legal advice. 

If it does get tabled and then passes in parliament it will almost certainly be challenged in the courts, either by the UK government or, after it is enacted, by a private individual.

Speaking to Scotland on Sunday, Aileen McHarg, professor of public law and human rights at Durham University, said she previously thought the case that the Scottish Parliament could hold the vote without the agreement of Westminster was "arguable".

However, she said she now believed the changes were “quite slim."

She said: "When I first wrote on this back in 2012, I thought that the case was arguable that they might uphold the validity of a bill.

"I didn't think it was by any means certain, but I thought it was arguable.

"Since then we've had quite a lot more jurisprudence, a lot more case law from the Supreme Court on devolution.

"We're also in a period where the Supreme Court has become quite conservative in its constitutional jurisprudence.”

The legal expert said the “fundamental point that you simply can't get over is that the UK Parliament has to agree to dissolve the union”.

However, she argued: "That doesn't mean that a unilateral process is completely pointless. It can serve a political purpose, it can continue to put pressure."

Meanwhile, a report in the Sunday Times suggested the government would try and bypass the legal issues by tweaking the question. 

Rather than ask voters, “Should Scotland be an independent country?” as in 2014, ministers could ask voters if they thought negotiations with London should start.

Writing in the paper, Ciaran Martin, the UK government’s former constitution director who helped to agree the framework for the 2014 referendum, said: “The talk in Edinburgh circles is of a clever legal wheeze where softer legislation is drafted.

"Perhaps instead of a ‘referendum on independence’, the bill is instead about something like asking the people of Scotland for a mandate to open independence negotiations with the UK.

"Something like this might stand a better chance in court, though experts are sceptical.”

However, he said that London’s options to block independence were "inexhaustible."

Mr Martin said: "It could change the law in Westminster to make what had just cleared the courts illegal.

"Or it could say in advance of the advisory vote that it won’t recognise the outcome. An organised unionist boycott of the ballot would undermine the credibility of the result.

"After the vote was over, the UK would do none of the three essential things needed to bring a new Scottish state smoothly into existence: negotiate a divorce settlement; repeal the Act of Union; or recommend that other nations recognise an independent Scotland. And no court could force it to."

Angus Robertson, the SNP’s constitution secretary, refused to be drawn on the issue during an interview with BBC Scotland’s Sunday Morning show. He said it was for the First Minister to make important policy announcements in parliament. 

However, the MSP said there was no reason why the UK Government should refuse to agree to the referendum.

“As everybody knows, democracy is not a one-off event. We don't just have one election. We don't just have one referendum on different questions. Democracy is a rolling process.

"People are entitled to change their minds. People are entitled to take a second look at things and we also shouldn't lose sight of the fact that there are now half a million people in Scotland who didn't even cast a vote in 2014, because they were too young or they hadn't moved here.” 

Mr Robertson said the “experience of Scottish constitutional politics” has “long involved UK governments going ‘no, no, no, yes.’ 

He added: “We are going to continue to press for the gold standard which the 2014 referendum showed itself to be.

“What happened then was that, on the basis that we were all democrats, we agreed that the people should have their say, the UK Government and the Scottish Government sat down, talked through the process it involved [the Section 30 order]. 

“And that means that a referendum can go ahead that is legal, and constitutionally will be recognised by the UK Government and would be recognised by other countries, and that is very, very important.”