It seems theTories are not entirely convinced by their own argument that the Scottish parliament has no legal authority to call indyref2 without Westminster agreement.
Adam Tomkins, a former Conservative MSP and the John Millar Chair of Public Law at Glasgow University, has admitted that the courts could accept the Scottish parliament’s right to call the vote.
That is in direct contradiction to endless statements by Scottish Tory leader Douglas Ross that such a vote would be an “illegal, wildcat referendum”.
Mr Tomkins said there was legal uncertainly about Holyrood’s right to hold a consultative referendum asking for the Scottish people’s opinion on independence.
The EU referendum was a consultative one and Mr Tomkins suggests Brexit-related decisions since then have ‘’muddied the waters’’
He said that although the constitution is a matter reserved to Westminster a consultative referendum would have no effect in law.
The EU referendum was a consultative one and Mr Tomkins suggests Brexit-related decisions since then have ‘’muddied the waters’’.
He said: “If the Scottish government presents an independence referendum bill as if its purpose is to seek the opinion of the Scottish people, knowing that its effect in law is zero, then because of the Supreme Court’s judgements since Brexit, it is going to be quite difficult I think to convince the Supreme Court that this a measure that relates to a reserved matter.
“The effect of the measure might be politically enormous, but the legal effect of the measure is zero.”
The SNP’s 11-point plan to hold indyref2 says that it will create a referendum bill in Holyrood and dare Westminster to challenge it in the courts.
Prime Minister Boris Johnson has said that he believes a legal referendum can only tales place if Westminster agrees a section 30 order to pave the way, as it did in 2014.
The High Court said in 2016 that a referendum on any topic can only be advisory for the lawmakers in parliament
Tomkins said the “assumption” among Unionists that the courts would rule against Holyrood’s right to hold a referendum without a section 30 agreement could be incorrect as he does not believe “the law is as clear as that”.
The EU referendum in 2016 was not legally binding but it would have been very difficult politically to ignore its result. The High Court said on November 3 of that year: “A referendum on any topic can only be advisory for the lawmakers in parliament.”
That would seem to suggest a consultative referendum on independence would have the same force as the EU referendum which dragged us out of Europe.
Mr Tomkins said he did not believe it was a “dead cert” that the Supreme Court would allow Holyrood to hold such an advisory referendum, but that it was also not “safe” for Unionists to assume the opposite.
He said one option might be for the UK government to legislate to end this legal confusion, but warned the political “optics” of this move would be challenging.
Mr Tomkins provoked controversy in April by suggesting that Scotland could be forced to stay in the Union against its wishes. He suggested that the Union could be continued through something ‘’more robust than consent’’.
UK minister Michael Gove yesterday said categorically that the Tory government would “not be legislating” to prevent future referendums.