A FORMER Tory MSP has insisted it would be “insane” for the UK Government not to allow a Scottish independence referendum if the Supreme Court rules it is within Holyrood’s competence.
Adam Tomkins, who is a constitutional lawyer at the University of Glasgow, said he wouldn’t put it past Prime Minister Liz Truss to attempt to block a vote, but claimed this would “accelerate” the case for Scotland leaving the UK.
He was taking part in an Institute for Government (IfG) discussion on the constitution following the conclusion of a two-day Supreme Court hearing on whether the Scottish Government can legislate for a second referendum without Westminster's permission.
SNP MP Tommy Sheppard said he had heard senior Tory MPs discussing the idea of blocking a vote following the case in the corridors of Westminster.
Asked whether it was likely the UK Government would legislate to block a poll from happening if the court ruled in the Scottish Government’s favour, Tomkins said: “Only if they’re insane.
“That would be a tactic or a strategy which would succeed only in accelerating Scotland’s divorce from the UK.
“I wouldn’t put it past Truss and her advisers to think that was a good idea [though].”
Anthony Salamone, the director of the Edinburgh-based political analysis firm European Merchants, said the outcome of the legal showdown on indyref2 would not eliminate the risk of a continuing political stalemate between Holyrood and Westminster.
In a blog post, the political scientist said even if judges ruled Holyrood was able to conduct a referendum, its legitimacy would be threatened by the risk of widespread boycotts by Unionists which would make it possible for Westminster to ignore the result.
Sheppard said the UK Government ignoring the ruling of the court would be "game-changing" for the independence effort.
He said: "Bringing about retrospective legislation to make it illegal for the Scottish Government to do what the Supreme Court has said is legal, that would be the kind of game-changing event that would see support for independence jump up to 60%."
During the IfG debate, former Scottish Labour leader Jim Murphy said he was “surprised” the case had reached the Supreme Court, given the bill has not been passed by the Scottish Parliament and the Lord Advocate refused to say whether it was in its competence.
He added he was “bamboozled” that an argument on “splitting up the UK” wouldn’t be solely reserved to the UK Parliament.
But Tomkins suggested there was an argument holding a referendum may not relate to a reserved matter – one of the questions the court was asked to resolve.
Murphy said: “I’m surprised by the entire process. The Supreme Court has been asked to rule on a piece of law that has not been introduced into the Scottish Parliament on an issue which the Lord Advocate is unwilling to certify as lawful, and has been reduced to asking for a consultative referendum.
Tomkins then responded saying: “The key to this lies in purpose and effect.
“Whether a provision of Holyrood legislation relates to a reserved matter depends on the purpose of that legislation having regard to its effect in all the circumstances.
“You could say the purpose of a referendum is not to terminate the Union, the legal purpose is to ask the people of Scotland their view about whether the Scottish Government should pursue negotiations with the UK.
“So if the purpose of the legislation is simply to consult the people of Scotland, that’s not a reserved matter. So the purpose could be competent.
“So then you go to the effect, and the Lord Advocate has said the legal effects are nil. There are no legal effects to a Yes vote, in her words.
“If you define the purpose and the effect of an independence referendum in those admittedly narrow terms, then that’s how you could run the argument.”
