A FORMER Conservative MSP has warned that the legal hurdles facing the Scottish Government in bringing forward legislation to hold a second independence referendum are “not insurmountable”.
Adam Tomkins, a professor of public law at Glasgow University, has claimed there are two legal hurdles that Nicola Sturgeon’s administration must overcome if her plans for a referendum bill face up to inevitable legal challenges.
Writing in The Herald, Professor Tomkins said that the first hurdle to overcome would be that “Holyrood’s legislation may not relate to reserved matters”, of which breaking up the Union is.
But he said that the legislation “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”.
He added: “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.”
READ MORE: Adam Tomkins: There is a chance the Supreme Court may not throw out a future IndyRef2 Bill
The former Glasgow MSP added that the second hurdle facing the Scottish Government is the reasoning used to justify the Supreme Court blocking two pieces of Holyrood legislation including a Bill that would have embedded the UN Convention on the Rights of the Child into Scots law, that was deemed outwith the competence of the Scottish Parliament.
Professor Tomkins said that “any Holyrood legislation seeking to place obstructions in the way of – or conditions on the way in which – UK law continues to have effect in Scotland is unlawful”.
He said: “Plainly this means that Holyrood could not legislate for independence. It is likely (but, again, not inevitable) that it also means Holyrood could not legislate for a referendum on independence.
“These legal hurdles are formidable. But they are not insurmountable.”
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