THE Scottish Government’s plans to bring forward legislation to hold another referendum will face hurdles – but they are “not insurmountable”, a former Tory MSP has said.
Adam Tomkins, who represented Glasgow between 2016 and 2021, predicted a bill will inevitably “sail through Holyrood” before ending up in the Supreme Court.
Writing in The Herald today, he said many are of the view that the provisions of the Scotland Act 1998 means the court would rule the legislation would be unlawful and that the Scottish Parliament does not have the power to hold a referendum.
But the professor of public law at Glasgow University said the matter is “not as clear cut” as some people might suggest.
One major legal hurdle, he argued, is that Holyrood’s legislation cannot relate to reserved matters, which includes “aspects of the constitution” as outlined in the Scotland Act.
He wrote: “Plainly, a Bill that sought to terminate the Union would be unlawful, as it would relate to a reserved matter. But Nicola Sturgeon’s Bill will be designed not to terminate the Union but to authorise a referendum on whether Scotland should be an independent country outside of the Union.
“As such, it could be argued that its 'purpose' is simply to ask the people of Scotland for their opinion; and it could be conceded that its “effect in all the circumstances” is actually very little.”
He added: “Referendum outcomes do not of themselves change the law. Brexit, for example, was not delivered by referendum. It was delivered by Acts of Parliament which took years of bitter negotiation and serial “meaningful votes” to enact.”
Tomkins said no court had yet ruled whether a bill authorising an independence referendum relates to reserved matters – and it is “probable, but not inevitable” that it would.
He said another hurdle is that the Scotland Act means Holyrood cannot do anything which affects the powers of Westminster to make laws for Scotland – which means it is again likely but “not inevitable” the Scottish Parliament could not legislate for a referendum.
But he added: “These legal hurdles are formidable. But they are not insurmountable.”
