The independence referendum could be challenged by any member of the public who raises a substantial doubt about the fairness of its outcome, according to a legal expert.
The Referendum Bill, which sets out the rules of next year’s poll, only allows a legal challenge to be brought if there is doubt over the number of ballot papers counted or votes cast.
But under common law, other challenges could be brought for allegations of unauthorised expenditure, voting irregularities, improper conduct by officials, or candidates making false statements about the personal conduct or character of opponents, according to constitutional expert Professor Tom Mullen.
Anyone who can demonstrate that they are acting in the general public interest could bring a challenge, although the likelihood of success is remote unless they can demonstrate there has been a substantial breach of the rules, he said.
Prof Mullen, from Glasgow University’s school of law, made the comments before he gives evidence before Holyrood’s Referendum Bill Committee.
In a submission before his appearance, he said: “Apart from the integrity of the count itself, there might conceivably be concerns about the conduct of the election campaign, for example, breaches of the rules on donations and expenditure rules or irregularities in relation to voting.
“Election petitions in parliamentary elections have been brought on a variety of grounds including the incurring of unauthorised election expenditure, improper conduct of the election by officials and a candidate’s making false statements in relation to another candidate’s personal character or conduct.
“Although, in theory, a person might bring a challenge on the grounds that there had been such widespread irregularities as to call into question the fairness of the outcome, the likelihood of a successful challenge is remote. A few isolated examples of unauthorised expenditure or minor irregularities at a few polling stations would not suffice.
“There would have to be something so substantial as to raise genuine doubts about the fairness of the outcome, in order to persuade the court to intervene.”
Until recently, petitioners had to demonstrate they had a sufficient stake in the outcome of legal proceedings to qualify for a judicial review, known as “standing”, which limited the range of people who could legally complain.
But two recent Supreme Court decisions on asbestos compensation and the Aberdeen bypass has reformulated the test for standing, according to Prof Mullen.
“The person raising the petition must have sufficient interest in the matter to which the application for judicial review relates but this is to be broadly interpreted and does not necessarily mean that the person must have a greater interest than any other person,” he said.
“The dicta in both cases made clear that, in appropriate cases, a petitioner can represent the general public interest. Accordingly, whilst both the official campaigns would clearly have sufficient interest to challenge the outcome, a broader range of individuals and groups might also have standing.”