Just say no! Boris handed masterplan to thwart IndyRef2 with new law – but there’s a catch

Adam Tomkins DESTROYS Nicola Sturgeon's independence hopes

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But Adam Tomkins, who represented the Glasgow region from 2015 to 2021, acknowledged such a move would be fraught with risk politically – and emphasised the importance of unionists focusing on the task in hand, namely securing Scotland’s pandemic recovery, rather than engaging with the SNP on the subject. First Minister Ms Sturgeon narrowly missed out on an overall majority in the Scottish Parliament following May 6’s Holyrood elections, winning 64 seats.

However, she continues to press her case for a so-called IndyRef2, most recently in a terse phone conversation with UK Prime Minister Boris Johnson on the Sunday following the vote.

In order for her to get her wish, Mr Johnson would have to grant an order under Section 30 of the Scotland Act 1998 – something he has already indicated he is not willing to do, with Ms Sturgeon, in turn, indicating she is willing to initiate legal action in a bid to get her way.

Mr Tomkins, who is the John Millar Professor of Public Law at the University of Glasgow School of Law, told Express.co.uk: “First of all I think the Government should do nothing – its first priority is Covid recovery and it is entirely right to make that the first priority, and that’s also the first priority of the Scottish people.

“So the UK Government and likewise, all of the opposition parties in Holyrood, should focus entirely, focus exclusively on that.

“And if the SNP wants to start making moves or making noise about an independence referendum that’s on them.

“The SNP say that their priority is Covid recovery so let’s see the proof of the pudding.

“I absolutely do not think that the UK Government should be doing anything about it.”

Nevertheless, Mr Tomkins acknowledged that the Government will need to react if the Scottish Government started making moves towards securing a referendum.

Setting out the likely course of events in the coming months, Mr Tomkins explained: “What every everybody expects is that the Scottish Government will formally ask for a Section 30 order, which is what happened in 2012, and the UK Government will quite rightly say ‘no, we don’t consent to a second independence referendum in a moment, now’s not the time’.

“And then everybody expects that what Sturgeon will do is introduce legislation in Hollyrood to authorise a second independence referendum, and that Holyrood will pass that legislation because as a pro-independence majority if you combine the Nats and the Greens.”

The widespread belief was that the UK Government would then challenge that legislation in the Supreme Court, in accordance with a provision in the Scotland Act, Mr Tomkins said, with the widespread assumption being that judges would rule legislation authorising a second independence referendum that does not have Westminster’s consent, would be unlawful.

However, Mr Tomkins said: “I’m not sure that that assumption is very safe.

“When I first looked at this question 10 years ago, I was pretty sure that the Scottish Parliament did not have the legal power to authorise an independence referendum without Westminster’s consent.”

Mr Tomkins warned the landmark 2019 decision which saw the Supreme Court rule the Government’s decision to prorogue Parliament weeks prior to the October 31 Brexit deadline to be illegal in a case initiated by UK businesswoman Gina Miller had the potential to throw a spanner in the works.

He said: “The reason why I’m not so sure anymore is that I think that the Supreme Court has really rather muddied the waters with its post-Brexit case.

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“And I think that the state of the law is now unclear because of the Supreme Court.

“So any UK Government strategy that relied on going to court to stop an illegal second independence referendum is a UK strategy which I think is vulnerable.

”It may very well be the Supreme Court does what we want it to do but it may well be that the Supreme Court doesn’t do what we wanted to do because I think that the court has muddied the constitutional waters.

“If the UK Government is minded to stop any second independence referendum that it might be a safer bet, at least legally, would be to legislate, rather than to litigate.

“Of course that will have no significant political consequences in Scotland, and the optics of that in Scotland, would be very challenging indeed, ie the idea that an English UK Tory Government is legislating in Westminster to stop Scots from expressing their view about whether they want to be independent or not.

“There’s no question that Westminster has the legal power to do that.

“But it is also the case that exercising that power is also going to come with pretty significant political risk.

“Which is why I think, as I said, just don’t do anything, because the smart thing to do at the moment is to wait for the SNP to act and in the meanwhile, get on with the job.”

Looking back to the two recent referendums which have changed the face of British politics, Mr Tomkins said: “Love them or loathe them, we’ve got to learn the lessons of the 2014 Independence Referendum and the 2016 Brexit referendum.

“There are lessons both positive and negative but the overwhelming negative lesson to learn is that referendums on vague ideas are not a very good idea.

“Whatever you think of Brexit referendum, British politics was in a state of paralysis for three and a half years because Parliament couldn’t figure out what on Earth a vote to leave meant.

“So let’s not have referendums on ideas, let’s have referendums on plans.

“The question has got to be, what is independence actually going to mean for the lives and livelihoods in Scotland.

“The question cannot be a vague aspiration about whether you want your nation to be free.”

The vagueness of the question in 2014 had been part of the problem, Mr Tomkins said, explaining: “As somebody put it as a time they campaigned in poetry in the campaign and we campaigned on prose.”

Mr Tomkins also stressed that such questions were not just theoretical, emphasising that any decision Scotland might take to go it alone would have real and lasting consequences – hence his concern over the best way to prevent it happening in the first place.

He explained: “I think it would be disaster, I am not going to beat around the bush. It would be an economic catastrophe, there would be very significant economic consequences.

“In the long run it would be fine – but if you look at Ireland, Ireland went through 60 years of poverty before it became the Celtic Tiger in the 1990s.

“Compare the state of the health service in the 1970s with the state of health service in the United Kingdom and the education service in Ireland.

“Brexit, makes the case for independence, more powerful, politically more palatable to lots of people because it is not popular in Scotland. But it makes the reality of independence, even harder to achieve.

“And then Covid comes along and you see that there is no way that a newly independent Scotland could have afford could have afforded the furlough scheme, the same basis, that the Treasury provided.

“A newly independent Scotland simply would not be able to borrow at the rate, or at the rate that the UK could borrow, because the UK in its history has never defaulted on its debt once.”

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